This chapter examines the key legal, technical and definitional issues raised in relation to the proposed provisions. These include:
whether the bill is constitutional;
whether the bill duplicates existing laws;
the proportionality of the proposed legislation and penalties;
the scope of the bill and the definition of key terms; and
the applicability of the bill to agricultural research facilities.
Some witnesses, including the Law Council of Australia, expressed concerns that the bill may not be constitutional, as it may impinge upon the implied freedom of political communication because conduct captured by the proposed offences ‘may overreach what is necessary for the effective operation of a system of representative and responsible government’.
The Law Council submitted that the constitution protects the ‘freedom to disseminate information respecting government and political matters’, and that this includes issues relating to primary production and animal welfare, as affirmed in the case of ABC v Lenah Game Meats.
The NSW Council for Civil Liberties, which opposed the bill in its entirety, offered this description of the case:
…in ABC v Lenah Game Meats Pty Ltd  HCA 63 – a case which stands on all fours with the trespass legislation raised by s. 474.46 of the present Bill – the implied freedom was applied to invalidate a charge of trespass against animal rights activists who filmed the interior of a possum meat processing plant.
According to the Law Council, the case of ABC v Lenah Game Meats demonstrated that, because ‘broadcasting is a primary means of bringing issues…to the attention of the public’, courts have sought to ensure ‘legislative and regulatory protections and safeguards’ for broadcasting of issues of political interest.
The NSW Council for Liberties argued that ‘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’.
Any legislation that is likely to reduce the public’s access to information about legitimate political issues must, according to the Law Council, be necessary, with ‘no obvious and compelling alternative, reasonably practical, means of achieving the same purpose which has a less burdensome effect on the implied freedom’.
The Law Council recommended clarifying within the legislation that conduct in service of the public interest, such as whistleblowing and journalism, ‘will not constitute an offence’ under the legislation. It proposed that such an amendment would ‘assist with the constitutionality’ of the bill. This proposal is discussed further in Chapter 3.
The Attorney-General’s Department disputed claims that the bill may not be constitutional, arguing that it includes:
the relevant jurisdictional element of using a carriage service, consistent with other offences in Part 10.6 of the Criminal Code; and
a specific section – section 474.48 – which ‘explicitly limits the effect of the offences to the extent that they may impinge on the implied freedom of political communication’.
Duplication of existing laws
The Law Council, as well as some other submitters, argued that the bill duplicates existing state and territory laws, which ‘arguably criminalis[e] the conduct of inciting trespass and property damage behaviour through various legislative and common law extensions of criminal responsibility’.
The Law Council explained that some Commonwealth and state and territory statutes already criminalise the conduct of those who incite offences, through extending criminal responsibility for aiding, abetting, inciting, assisting or otherwise participating in an offence. The Law Council considered that the bill is unnecessary, as state and territory offences already cover accessorial liability in a way that is proportionate to the substantive offences.
The Humane Society International (HSI) Australia asserted that conspiracy to commit an offence, incitement to commit a crime, complicity, aiding or abetting in a crime, and ‘procuring an offence’ are all punishable under the Criminal Code Act 1995. HSI Australia further stated ‘trespass is illegal at the state level’, ‘single party surveillance is illegal under varying conditions at the state level’, and theft, burglary, and destruction of property are illegal.
Finally, HSI Australia submitted:
Biosecurity concerns, mentioned as an impetus for this amendment in the second reading speech, are also already addressed by state legislation in the form of livestock management and biosecurity acts. These existing criminal laws are fully comprehensive and are not lacking in any way that the proposed amendment would compensate for.
The Attorney-General’s Department acknowledged that state and territory laws ‘have incitement offences that can extend liability to those who incite others to commit these offences’. However, the department argued the proposed legislation is required ‘to provide consistent and strong protection for Australian farmers’ and ‘ensure a consistent national approach’.
Farming groups stated that existing legislation is inadequate. For instance, New South Wales Farmers’ Association (NSWFA) said that acts in NSW that criminalise trespass, such as the Enclosed Lands Protection Act 1901, the Crimes Act 1900 and the Biosecurity Act 2015, ‘actually haven’t resulted in prosecutions or even further investigations that might result in a prosecution’.
Australian Dairy Farmers Ltd discussed section 474.17 of the Criminal Code, which criminalises use of a carriage service to menace, harass, or cause offence, arguing that these provisions are limited to ‘emergency service workers’ by subsection (2).
The Law Council disputed this, saying that 474.17(2) includes the phrase ‘without limiting’, meaning the provisions do apply to emergency service workers, but also apply more broadly.
The National Farmers’ Federation (NFF) said it understood that no one has been charged in relation to animal rights protests under these provisions. The NFF concluded that the ‘laws are inadequate’, and ‘aren’t applying well enough, adequately enough, to agriculture’.
The Attorney-General’s Department and the Law Council both provided information about relevant state and territory legislation. A table at Appendix 3 summarises this information, including the maximum penalties applicable.
The Department of Agriculture submitted that the provisions in the bill complement—rather than duplicate—existing state and territory legislation. The Attorney-General’s Department explained:
These offences do not introduce new forms of criminal conduct. There are already a range of state and territory offences that apply to this conduct when perpetrated via a carriage service or otherwise, attracting a range of penalties. However, these new offences and penalties will apply consistently across Australia, which is relevant given the cross-border nature of these forms of offending via carriage services such as the internet. The approach taken in this bill is also consistent with the purpose of part 10.6 of the Criminal Code, which provides a suite of telecommunications offences, many of which complement other state and territory offences. This part includes a saving provision intended to preserve the operation of state and territory laws.
The Attorney-General has raised these reforms with his state and territory counterparts in a meeting of the Council of Attorneys-General in June. Participants agreed on the importance of addressing trespass on farms and agricultural premises and undertook to consider options to strengthen trespass and related laws. Several jurisdictions have already implemented stronger measures…Other states and territories have established inquiries into the effectiveness of their trespass laws and announced amendments to their trespass and biosecurity laws.
Submitters and witnesses expressed differing views on whether the proposed legislation is necessary and proportionate.
The Law Council, and a number of other submitters, expressed a view that the bill was disproportionate to its stated aims.
The Law Council was specifically concerned about what it saw as the ‘potentially broad scope of the proposed measures’ and ‘the severity of the penalties’.
The NSW Council for Civil Liberties argued that the bill disproportionately criminalises incitement for ‘offences as minor and trivial as trespass and unlawful damage’, which it said are prosecuted in local courts ‘on every day of the working-week’.
The Animal Protectors Alliance argued that the bill would create the situation in which offences against farmers are punished ‘more harshly than exactly the same offences committed against everybody else in the Australian community’, and further, that the bill treats people who break laws to try and protect animal welfare more harshly ‘than people who commit the same offences for reasons of malice or personal gain.’
Regarding the likely deterrent effects of the bill, the Animal Defenders Office suggested ‘the bill will fail to deliver on its claimed objectives…and may well have the opposite effect’. Similarly, when asked if he would take down the Aussie Farms website if the bill is passed, Executive Director of Aussie Farms Inc., Mr Christopher Delforce answered: ‘No, certainly not’.
Conversely, farming associations, including the NFF, reported that farmers are experiencing ‘a surge in…antifarming rhetoric’ and an increase in farm trespass events, most of which are coordinated online.
Evidence for an increase in trespass activity was primarily anecdotal. However, Australian Pork tabled the results of a survey of its members, which found ‘41 per cent of the industry, by sow number, have suffered a raid by animal activists and 43 per cent of the producers have had images posted’ [to animal welfare websites].
Australian Dairy Farmers Ltd did not have statistics for the dairy industry, saying: ‘We can only really go on member incidents, and they’re much more prevalent’.
It provided a number of examples, including: an incident on the Darling Downs where a farm was ‘stormed by 100 activists in March’; an incident on a farm in Warwick in April, where activists ‘opened the gates and let the cattle run wild on to the road’; and repeat incidents on a dairy farm in South Australia, which included releasing cows, burning down a shed and damaging machinery.
The Victorian Farmers Federation (VFF) agreed that statistics have not traditionally been collected ‘for farm crimes specifically’. However, the VFF reported that the Victorian Police force is currently establishing ‘a dedicated statistic collection agency’ to deal with a perceived increase. Similarly, the NSWFA reported that the NSW Police recently established a ‘rural crime squad’.
The NSWFA argued that a rural crime squad was needed to address the significant ‘costs to the farming community of rural crime, including stock theft and trespass’, which the NSWFA estimated to be over $2.5 million.
Farming representatives proposed that the legislation is proportionate and, if enacted, ‘will send a strong message to farmers that the government understands how serious this issue is and is prepared to act’. These groups also argued the bill would act as a deterrent.
The Australian Federal Police (AFP) was asked if it had the resources to enforce the legislation if it were enacted. Assistant Commissioner Debbie Platz responded that state and territory police forces, as well as the AFP, would be able to enforce this legislation, and that, in her view, the AFP had sufficient resources available to investigate cases under the provisions.
Appropriateness of penalties
One of the Law Council’s key concerns with the proposed legislation is the maximum penalties for the two proposed offences: 12 months for the first offence of using a carriage service to incite trespass on agricultural land, and five years for the second offence, which involves using a carriage service to incite a person to damage, destroy or steal property on agricultural land.
The Law Council submitted that the penalty for the first offence, up to 12 months’ imprisonment, is ‘not proportionate to the policy objectives of the Bill’, because:
…in some instances this exceeds the penalty applicable for the primary offence, or the substantive offence, which is not consistent with established principles of criminal law relating to accessorial liability.
In its submission, the Law Council provided details of maximum penalties for the offence of trespass in a number of states and territories, many of which are lower than 12 months. Examples included the Northern Territory, which has a maximum penalty of 6 months imprisonment, Queensland, where the maximum penalty for the substantive offence is currently 12 months, and NSW, where the penalty is currently 50 penalty units ($5500).
In relation to the second offence, the Law Council said the possible prison sentence of five years:
…may well contravene what are accepted principles of criminal law—that is, the incitement itself, or the accessorial conduct, which can only be proved with the actions attaching to those of the substantive offence, is penalised with a much greater penalty than the substantive offence itself.
The Law Council added that ‘normally the penalty will be the same as or less than the penalty for the primary offence, not more’. The Law Council did, however, also acknowledge recent announcements by the New South Wales Government ‘to increase penalties for activists who illegally enter farms’.
In relation to penalties, the Attorney-General’s Department reported on efforts underway in a number of states and territories to strengthen trespass laws. For instance:
New South Wales announced the introduction of $1,000 on-the-spot trespassing fines and biosecurity fines of up to $220,000 for individuals or $440,000 for corporations. Other states and territories have established inquiries into the effectiveness of their trespass laws and announced amendments to their trespass and biosecurity laws.
Scope and definitional issues
During the course of the inquiry, some submitters and witnesses raised questions about the scope of the bill and a number of key definitions.
Scope and definition of ‘agricultural land’
The bill creates offences relating to inciting trespass, theft or damage on agricultural land. ‘Agricultural land’ is defined in the bill, and means land which is used for a primary production business. The bill would insert a list of applicable types of primary production businesses at existing section 473.1 of the Criminal Code Act 1995.
The Attorney-General’s Department explained that the legislation ‘would operate to protect a range of producers, including meat, dairy, honey, fish, fruit, vegetable, crop, nut, wine and timber producers, operating on private land’.
A number of submissions proposed the scope of the bill be expanded.
The Australian Livestock and Rural Transporters Association recommended that the provisions should be extended to protect heavy vehicles transporting produce and animals. This suggestion was supported by the NFF.
The Queensland Resources Council submitted that the provisions should be applied to all businesses, including rail, port and resource facilities, because resource proponents in Queensland have also been targeted by activists.
The Tasmanian Farmers and Graziers Association recommended the bill be amended to apply to ‘the use of drones as an action to constitute using a carriage of service to transmit material to incite unlawful damage, destruction or theft of property on agricultural land’.
Agricultural Shows Australia suggested the bill be expanded to cover land where an agricultural show is taking place.
Seafood Industry Australia submitted that the committee should consider the inclusion of wild-caught fishing, including in waters that are not privately‑owned. It argued this would protect fish-processing facilities at sea, as well as fishing activities in the open marine environment.
In response, the Attorney-General’s Department stated:
…the government was, as you appreciate, responding to a series of incidents that happened predominantly earlier this year, where there was increasing concern about trespass and other activities taking place on agricultural land. The government wanted to respond to this and to dissuade people from undertaking those activities. In doing so, it was careful to confine the application of these two offences to the mischief in question, which is the commission of these offences on private property. As soon as you step out of that realm and move into incidents that might occur in public spaces, there is a range of other issues and complications that come into the picture. That wasn’t the government's primary concern at that time. It wanted to focus and be targeted on how it was responding to the issue that was at hand.
In relation to the inclusion of fishing activities at sea, the Attorney-General’s Department responded:
Extending the offences to cover incitement of trespass on fishing vessels outside Australia’s territorial waters would require the resolution of complex jurisdictional questions that could introduce significant uncertainty into the application of the Bill.
What constitutes ‘incitement’?
The question of what would constitute incitement under the provisions of the bill was the subject of debate during the course of the inquiry.
Aussie Farms Inc. voiced concerns that:
What…this bill is trying to do is suggest that the publishing of footage itself is incitement, because someone might then go and do something like take an animal from that farm. Regardless of whether that actually happens, they can claim—and, from statements made by the Attorney‑General, it sounds like they will try to claim—that simply publishing footage is incitement to trespass.
As a group known for promoting animal rights, the Animal Defenders Office believed that it could be prosecuted under the bill for simply sharing a post that contained information about the locations of farms, even if it did not intend to incite trespass.
Australia’s Right to Know (ARTK) argued the bill may have ‘a chilling effect on reporting and public debate, and discouraging whistle-blowers and sources of stories of this kind’ by capturing media companies or journalists where they have published a story and activist groups comment on that story, or share it with the intention ‘to incite people to action or give notice of a demonstration that’s on’. On that basis, ARTK sought ‘some further amendments to provide us with that surety about the risk of third-party comments, particularly on social media sites’.
The Animal Defenders Office was also concerned the provisions could ‘capture situations beyond the intended scope of the bill’, such as using a carriage service ‘to rally animal rescuers to a situation where animals were suffering in a neglected farm’. The Office was of the view that the proposed provisions would make it ‘a crime to organise the rescue of those animals’.
If passed, HSI Australia submitted, the law ‘must only apply where the incitement to trespass is overt and cannot apply where one explicitly states the intent of the post is not to encourage trespass’.
The Attorney‑General's Department responded to these concerns, arguing that the bill could not capture conduct that unintentionally led to trespass:
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.
The department further stated that to constitute an offence, the conduct must be intended to incite trespass, and, in legal terms, ‘intention is the highest fault element, in terms of being the most difficult to prove’.
Definition of ‘journalist’
The Law Council argued that the definition of ‘journalist’ in the bill is unclear and too restrictive. It proposed the bill clarify the term and reflect the definition in the Evidence Act 1995 (Cth):
…the Evidence Act definition of ‘journalist’ may be broad enough to include those who report and comment upon news in the modern environment including bloggers and commentators.
ARTK was satisfied that, while the bill does not define ‘journalist’, it includes reference to entities that are ‘engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media’. ARTK suggested this description was ‘broad enough’ to capture the work of mainstream news media companies.
The Attorney‑General’s Department explained that the term was not defined in the bill in order to provide that the word ‘journalist’ maintain ‘its ordinary meaning’. This captures, according to the department, ‘the fact that journalism is in a little bit of a state of flux’.
The department did not support the Law Council’s suggestion of ‘picking up the definition from the Evidence Act’, arguing that the offence does not relate to the material itself, but only the specific and intentional use of it to incite trespass. This, the department argued, ‘takes out the journalist and probably the editor and the publisher and all those people in that process at the same time’.
Protection for agricultural research and development
Questions were raised during the course of the inquiry as to whether the bill would protect against trespass and property offences on land where agricultural research is being conducted.
In a written submission, the CSIRO advised that it mostly conducts agricultural research on land which is used for primary production, and as such would be covered.
The Australian Academy of Science submitted that the bill in its current form provides ‘partial coverage to land used for conducting agricultural and/or scientific research’. Specifically, farming land that is also used for research would be covered, but a facility situated on land that is not used for primary production would not be included.
At the public hearing, the Academy expressed a view that existing provisions in the Criminal Code already ‘self-protect facilities from vandalism’.
Asked about a 2011 case in which a CSIRO trial wheat crop was destroyed by activists, the Academy commented that the perpetrators were charged under existing laws, adding:
It took place on Crown land and, while there has been a lot of aggressive rhetoric about GMOs in the past, I don’t know that there was any specific incitement incident associated with this.
The Academy did not know of any other Australian cases but provided a number of examples from the United States of America, Canada and Europe, where significant damage was done to genetically modified research crops by environmental activists.
Australian Dairy Farmers Ltd supported the suggestion that the bill should be extended to explicitly cover agricultural research facilities. It provided an example from March 2016 where its Rural Research and Development Corporation ‘was invaded by 20-odd activists doing a sit-in’ and causing the building to be ‘locked down’.
The Academy of Science reported that it is neutral on the question of whether the bill is necessary, saying ‘…the Academy has not identified a need for the specific provisions against incitement in the Bill as it relates to agricultural research’ in light of existing protections against trespass and vandalism in the Criminal Code. The Academy continued:
I don’t think we have a formal position on this bill. I think, in general, we’re in favour of free and open expression. Freedom of speech is absolutely essential to those scientific enterprises, and we would likely come down in favour of free expression.
Farmers and others who grow and process food and fibre make a valuable contribution to the Australian economy and society at large. Farmers face significant challenges in conducting their business, from the vagaries of the weather, to commodity price fluctuations, pests and diseases.
Farmers should not have to contend with illegal trespass activity, theft or damage to their land, property, stock or equipment. Unfortunately, coordinated incidents of trespass appear to be on the rise, despite the existence of laws that criminalise trespass and property damage.
While there are existing Commonwealth and state and territory laws that may be used to prosecute incitement to commit crimes on agricultural land, there is inconsistency in the application of these laws and the penalties associated with the offences.
The committee therefore considers that the bill is a proportionate response to the apparent rise in activist trespass on agricultural land. The bill complements efforts underway in some states and territories to strengthen existing trespass laws, including by introducing tougher penalties.
The committee is satisfied that there is a need for laws that explicitly target the use of a carriage service to incite trespass, including to act as a deterrent and to send a strong message that this kind of offending will not be tolerated.
Concerns have been raised about the potentially broad application of the provisions and the risk that benign conduct may be captured. The committee has carefully considered this issue and is satisfied that the bill has been drafted to ensure it only captures conduct where there is an explicit intention to incite trespass.
In relation to the scope of the bill, the committee supports the government’s decision to limit these offences to agricultural land. The scope of the bill as drafted is fit for achieving the stated purpose of helping to protect farmers from disruption and detriment caused by trespass activity.
While sympathetic to the concerns of livestock transporters, mining companies and other businesses that experience disruption and economic harm arising from the activities of activists, the committee is reluctant to expand the scope of the activities criminalised beyond that which is absolutely essential to deal with the combined threats of personal safety concerns, remoteness from law enforcement assistance, animal health and biosecurity concerns and consequential economic harm. This puts agricultural properties in a category separate from, and deserving of greater protection, than the other businesses suggested.
The committee sees merit in the idea of protecting scientific research facilities that conduct agricultural research. However, in the absence of clear support from the sector, or compelling evidence of an unmet need, the committee does not support the idea of expanding the bill to explicitly cover these facilities.