This chapter considers evidence about the possible impacts of the bill. Firstly, it considers the potential positive impacts of the legislation on the safety and security of farmers and their families, as well as the role the bill may play in protecting biosecurity, health, and safety on agricultural land.
The chapter then considers the adequacy of the protections for journalists and whistleblowers contained in the bill.
Finally, it discusses evidence presented during the inquiry on transparency and animal welfare, including the suggestion that, if enacted, the bill would have a ‘chilling effect’ on legitimate reporting of abuses.
Safety and security of farmers and their families
The committee heard that activist trespass activity has a significant impact on the health, safety and security of farmers and their families.
The Attorney-General’s Department submitted that trespass can ‘make farmers, their families and their employees feel unsafe and intimidated, including in their own homes’, and that farmers have a right to privacy on their land.
Farming groups said trespass has significant impacts on the wellbeing of farmers, especially as many live on their farms. The Victorian Farmers Federation (VFF) said: ‘The committee should understand that this is your community, your livelihood, your house, that people are coming to. That undermines confidence’.
Australian Dairy Farmers Ltd reported that farmers ‘are scared to leave their elderly parents at home to take care of the farm’ in case of activist incursions.
The National Farmers Federation (NFF) argued that the bill will help to reduce the threat to farmers of their ‘homes, properties and businesses [being] invaded by extreme activists who are philosophically opposed to animal farming’.
Farming groups reported examples of farmers sending their families away from their properties when protest activity was expected out of fear for their safety and that farmers feel ‘traumatised’ by activist trespass.
The NFF also highlighted the fact that many farms are situated in remote locations which are:
…hundreds of kilometres from the nearest enforcement agency or nearest neighbour. So they are increasingly vulnerable to attacks and intimidation, and that just exacerbates the fear and anxiety that some of these families are facing.
Mr Christopher Delforce from Aussie Farms Inc. refuted these reported impacts, arguing that ‘in 45 years of activists documenting and uncovering abuse on farms and in slaughterhouses, there has not been a single incident of an activist going anywhere near the homes of farmers’. Mr Delforce argued that ‘[a]ctivists pose no safety risk to farmers’ and ‘are nonviolent’. He further stated that activists have not harmed any farmers, but reported that he personally knows activists who claim to have been assaulted by farmers.
In contrast, Australian Pork Limited submitted that a number of photos uploaded to the Aussie Farms website include close images of farmers’ homes, which has caused distress to these farmers.
Pork farmer, Mr Ean Pollard, explained that trespass on his property has led to footage being uploaded to YouTube and ‘inciting hatred—emails, letters and telephone calls’, which made Mr Pollard and his family feel unsafe and question their involvement in the industry.
A director of Ausveg submitted that, similar to ‘gangs of youths trespassing upon urban houses’, animal activists trespassing upon farms ‘cause shock, distress, anger’ and damage to property.
Industry representatives proposed that the legislation would bring ‘comfort’ to farmers, meat processers and other primary producers, and help to keep more people engaged in the agricultural sector.
Biosecurity, health and safety
Farming groups, meat processing industry representatives and the Department of Agriculture detailed negative impacts of trespass on biosecurity, health, and safety, including the potential for the introduction of disease pathogens, the introduction of food contaminants, and potential injury to workers, stock animals, and activists themselves.
Aussie Farms argued that activists are careful to avoid any contamination, wearing ‘single-use full-body coveralls and boot-covers’, and that ‘[t]here has not been a single incident of a biosecurity hazard caused by activists’.
The Animal Defenders Office echoed the view that there have been no biosecurity incidents connected to activist trespass in Australia. When questioned, the RSPCA also advised that it was ‘not aware’ of any actual biosecurity incidents caused by activists in Australia.
The Department of Agriculture submitted that ‘[e]ntry 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’, which is a threat to animals, farm workers and trespassers. This assertion was supported by the Australian Veterinary Association (AVA), which told the committee that its support for the bill is primarily based on its concern about ‘the high risks to animal biosecurity and welfare that are involved with unauthorised entry’.
Dr Melanie Latter from the AVA said:
Although I don’t know of particular cases yet where that’s happened through activism in Australia, it’s a huge risk. At the moment we’re particularly worried about African swine fever, and you would have to say biosecurity has never been more important on farms than it is now.
The AVA also expressed concerns about diseases that are carried on fomites (inanimate objects, like shoes and clothing). These include Johne’s disease and foot-and-mouth disease. Australian Dairy Farmers Ltd agreed that foot and mouth was a strong concern, referring to research conducted by the CSIRO which estimates the cost of an outbreak to the economy could be around $50 billion over 10 years.
While evidence of biosecurity incidents was limited, Australian Pork provided anecdotal evidence of three Queensland piggeries which experienced ‘breakouts of Mycoplasma pneumonia’ in the aftermath of activist incursions.
The Australian Chicken Meat Federation argued that actions undertaken by animal activists in relation to biosecurity are insufficient to mitigate biosecurity concerns. Executive Director, Dr Vivien Kite detailed ‘strict biosecurity protocols’ that reduce the chance of disease outbreaks and contamination in chicken processing, including exclusion periods. Dr Kite concluded: ‘The act of putting some protective clothing on does a little bit but it doesn’t do enough’. Dr Kite reflected on the impacts of avian influenza on the poultry sector in 2013, saying:
We, as an industry, are still paying back the Commonwealth for our share of the cost of that. They were multimillion dollar exercises to actually eradicate. Fortunately, we haven’t had one recently, but it just demonstrates that it can happen. It’s a highly transmissible disease. It’s carried on people. It’s something we don’t want to have happen again.
The AVA agreed that animal activists are unlikely to understand the complex and varied biosecurity procedures in place across food production industries.
Data from a survey of its members by Australian Pork included figures on self‑reported incidence of ‘disease outbreak’ resulting from activist activity. The results indicated that around 41 per cent of respondents had experienced an activist raid on their property, around 9 per cent had suffered financial loss as a result, and, of that 9 percent, around 10 percent reported the loss was related to ‘disease outbreak’.
Mr Pollard provided a personal account about the distress caused to his pigs by activist incursion:
Activists raided our place in the middle of the night and took some footage and still pictures and quite a bit of it was on video…These activists were there for quite some time with cameras and lights—I’ve seen this footage myself—and stirred [the animals] up to a point where it became quite sensational footage, because the sows thought they were going to get fed and they didn’t.
Australian Pork similarly gave evidence about a number of cases in which activist trespass had reportedly caused distress to pigs, and resulted in:
stillbirths and abortions in pregnant sows;
a broken leg in one sow, which had to be euthanised; and
piglets at a Victorian piggery drowning in effluent ponds.
Aussie Farms refuted these examples, saying it did not believe any evidence had been provided to substantiate claims that activist activity had led to animal cruelty or piglets drowning.
The Department of Agriculture explained the importance of strong biosecurity measures to reduce the risk of introduction and spread of infectious diseases, and reflected on the risk of a person trespassing on an agricultural property being exposed to zoonoses. The department also discussed the increased stress on animals arising from unauthorised entry, such as porcine stress syndrome in pigs.
Adequacy of exemptions for journalists
The bill provides exemptions for material transmitted or distributed by a journalist acting in a professional capacity (proposed subsection 474.46(2), mirrored in the same terms in proposed subsection 474.47(2)), but not if the journalist intentionally incites trespass.
The provision reads:
(2) Subsection (1) does not apply to material if the material relates to a news report, or a current affairs report, that:
is in the public interest; and
is made by a person working in a professional capacity as a journalist.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Australia’s Right to Know (ARTK), a group of media organisations established to provide input to inquiries relating to ‘media freedoms, defamation law reform—any areas which are relevant to journalists’ ability to do their job and the public’s right to know’, told the committee that journalists are fearful they ‘could become collateral damage’ of the bill, potentially facing prosecution for ‘doing legitimate uncoloured, objective news stories about’ animal activism.
ARTK argued that the activities of animal activists including trespass are ‘legitimate news’ and ‘it’s in the public interest to publish legitimate news about what they’re doing’.
Mr Mark Maley from the Australian Broadcasting Corporation, representing ARTK, argued that, in its current form, the bill provides a defence for journalists, rather than an explicit exemption. He said:
…the starting position is that we have committed an offence…there is absolutely nothing stopping our journalists from being investigated and potentially charged for committing an offence which they honestly believe is for a story that is in the public interest and they are doing their normal jobs as journalists.
Failure to provide an explicit exemption for journalism could, Mr Maley said, create the risk that the ‘relationship between a journalist and a source…is potentially becoming criminalised’.
If an explicit exemption is not provided, ARTK suggested amending the bill to remove the requirement for a journalist to prove that their actions were conducted ‘in the public interest’. ARTK proposed instead that a ‘reasonable belief’ that the actions were conducted in the public interest should be sufficient.
Ms Deborah Auchinachie from the Australian Broadcasting Corporation, representing ARTK, proposed the bill be amended to reflect section 122.5 of the Criminal Code Act 1995, which provides ‘an exemption to other criminal offences that are about secret information et cetera’. This exemption only requires ‘a reasonable belief on the part of a person involved’ that their conduct was in the public interest.
Ms Auchinachie argued that this change would:
…allow media organisations and journalists…to retain their prerogative to make a judgement about what is in the public interest rather than what is in the public interest being a judicial decision. It’s a small difference, but it is potentially a significant difference.
The Law Council shared similar concerns that the bill may have ‘an effect of prohibiting broadcasting of matters relevant to public affairs and political discourse’.
The Law Council argued the fact that a journalist could ‘be charged, go to court’, and have to defend themselves, would in itself likely deter journalists. The Council suggested amending the bill to ‘make clear that…in relation to purposes such as public discussion [on] law reform it is not an offence’.
This could be achieved by adding a provision to the bill similar to existing subsection 474.29A(3) of the Criminal Code. The Law Council suggested such a provision should say 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’.
Ms Georgia-Kate Schubert from News Corp Australia, representing ARTK, said: ‘[u]nless these provisions are drafted correctly, we do face significant risk, and it does undermine public interest reporting.’
The Attorney-General’s Department did not agree that amendments were necessary, explaining that the exemption for journalists in the bill was ‘modelled on the most recent protection for journalists provisions that have been passed by the parliament’, specifically those in the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019.
The department maintained the provisions as drafted are more appropriate than alternatives suggested by submitters ‘because they are tailored to the offences’ in the bill. The department also reiterated its view that the bill could not capture conduct that unintentionally led to trespass, as intention (to incite trespass) is the required fault element.
Adequacy of exemptions for whistleblowers
The bill provides exemptions for whistleblowers, which would apply where any Commonwealth, state or territory law currently exempts the conduct from being liable for civil or criminal prosecution (proposed subsection 474.46(3), mirrored in the same terms in proposed subsection 474.47(3)).
The provision reads:
(3) Subsection (1) does not apply to conduct engaged in by a person if, as a result of the operation of a law of the Commonwealth, a State or a Territory, the person is not subject to any civil or criminal liability for the conduct.
Note 1: The Public Interest Disclosure Act 2013 provides that an individual is not subject to any civil or criminal liability for making a public interest disclosure.
Note 2: Section 1317AB of the Corporations Act 2001 provides that a person who makes a disclosure that qualifies for protection under Part 9.4AAA of that Act is not subject to any civil or criminal liability for making the disclosure.
Note 3: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(4) Subsection (3) does not limit section 10.5 (lawful authority).
Aussie Farms argued that the activities of activists who trespass to collect footage of animal abuses constitute legitimate whistleblowing; the Law Council argued that the whistleblower protections ‘simply aren’t strong enough’.
The Law Council submitted the exemption is too narrowly defined, and existing public interest disclosure regimes are inadequate, inconsistent across the states and territories, and may not apply to the kinds of businesses likely to be involved in cases of animal cruelty.
Specifically, the Law Council argued that the existing public interest disclosure regime established by the Public Interest Disclosure Act 2013 only applies to Commonwealth public officials, and the Corporations Act 2001 only provides whistleblower protections for workers who work for ‘public companies and large proprietary companies’, and is ‘unlikely to extend to animal cruelty’.
An additional concern, raised by the Parliamentary Joint Committee on Human Rights, the Senate Scrutiny of Bills Committee and some submitters was that the bill classifies the defences as offence-specific defences, where the ‘defendant bears an evidential burden in relation to the matters’.
The bill frames the journalism and whistleblower defences as defences for which the alleged offender carries the evidential burden, as opposed to framing them as ‘an element of an offence to be proved by the prosecution’.
The Attorney-General’s Department responded to these concerns, maintaining that the framing of the defences was in line with the general principles of criminal responsibility in chapter 2 of the Criminal Code.
The department also explained that, once the defendant adduces or points to even a very small quantity of evidence, the evidential burden ‘flips back’ onto the prosecution, such that it remains a matter for the prosecution to prove. Mr Walter said:
…is not a legal burden—you do not have to prove it beyond reasonable doubt or on the balance of probabilities—it is just an evidential burden. And it is enough for you to point to evidence to say, ‘Yes, I am a journalist. I have acted in the public interest,’ and then the burden flips back onto the prosecution. And it is because those matters are going to be peculiarly in the knowledge of the journalist in that question.
Animal welfare and transparency
A number of submitters argued that exposure of animal cruelty is in the public interest, including ARTK, which submitted:
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.
The Animal Defenders Office said the bill ‘unjustifiably undermines freedom of expression’ because the public is ‘overwhelmingly concerned about the mistreatment of farmed animals’, and has a right to know about farming practices.
If passed, the Animal Defenders Office suggested the bill may in fact lead more people to ‘take up the fight for animals’, because they will perceive the legislation as an attempt by government to cover up practices of abuse.
The Animal Protectors Alliance suggested the bill ‘can only be [intended] to prevent the exposure of cruel farming practices to the Australian public’. This view was echoed in a number of other submissions, including that from the Humane Society International (HSI) Australia.
A number of other submitters contended that, even if the bill has not been drafted with the intention to prevent exposure of abuses, it will nevertheless have a “chilling effect” on the reporting and exposure of cruel farming practices.
HSI Australia submitted that the bill ‘may have severe consequences for the perception of animal welfare advocates and may pave the way for further restrictions to farm animal welfare advocacy activities in the future’.
Animal activist groups argued that practices which are cruel to farm animals are generally lawful in Australia, and activist trespass is the only way they get exposed and ultimately changed for the better. Farming groups robustly disagreed with this proposition.
Aussie Farms Inc. described activist trespass as an ‘unfortunate necessity’ under the current system, and explained that activists do not ‘want’ to go onto farms, but feel compelled because of inadequacies in Australia’s animal welfare monitoring.
The Animal Protectors Alliance stated:
…every change in attitude to the treatment of farm animals—whether it be battery cages, sow stalls, cattle feedlots or live animal exports—that has occurred in Australia in the past 40 years would not have been possible without the evidence brought out about these practices by ordinary citizens who have put themselves in harm’s way to do right thing.
The RSPCA said that, in the absence of a formalised process of incremental improvement to animal welfare standards:
…we have to rely on activism, on media exposes to bring about the public interest and the public concern that motivates the law reform and the policy change. It’s certainly not a desirable approach to law reform, we would agree with that, but, in the absence of having any kind of national framework, it’s all that seems to be working at the moment.
The RSPCA also commented on the broader implications of the bill for issues of animal welfare and transparency. Acting Chief Executive Officer, Dr Bidda Jones, proposed that ‘community attitudes towards animal welfare in farming are changing, and so too are expectations about what is appropriate and what is not’.
Dr Jones referred to a recent national study on attitudes to animal welfare, the Futureeye study, which found 91 per cent of Australians would like to see welfare reforms to farming practices. In this context, Dr Jones suggested it was not surprising to see a rise in activist activity around animal welfare.
The RSPCA held that Australia’s standards for livestock welfare ‘are lagging behind much of the developed world’. Dr Jones pointed to: low levels of transparency in compliance monitoring by state and territory governments; lack of a ‘national strategy towards continuous improvement’; absence of animal welfare standards in domestic abattoirs; and the continued use of battery cages for hens.
The RSPCA concluded that ‘there is a significant role for the federal government to play in coordinating and leading the development of national standards in conjunction with the states and territories’. This view was shared by the AVA.
Farming groups told the committee that they want to be transparent, but this must be on reasonable terms. The VFF said: ‘We are open to dialogue on common ground—not in private, uninvited.’
Australian Dairy argued that its members adhere to standards above those required by state laws, and have lobbied for states to legislate for higher standards, such as the Australian Animal Welfare Standards and Guidelines for Cattle (which have only been legislated in New South Wales and South Australia).
Australian Pork referred the committee to its Industry Quality Assurance Program, which ‘covers about 90 per cent of production’ and is intended to enable ‘producers to demonstrate that their on-farm practices reflect good farming practice for management, animal welfare, food safety, biosecurity and traceability’. Under this program, farms are audited once a year by independent auditors.
The RSPCA acknowledged that many farmers ‘want to be transparent’ and ‘tell the story’ of Australian agriculture, but argued ‘it is vital that that story is told in an accurate way’. An absence of accurate information from industry, the RSPCA said, leads the public to ‘start listening to what activists are telling them’.
The RSPCA recommended Australia prioritise developing a ‘national animal welfare advisory committee or national animal welfare strategy’. Similarly, the Animal Protectors Alliance proposed that Australia should create an ‘independent commission of animal protection’, and the AVA proposed a ‘national animal welfare framework’, which could help rebuild trust and ‘drive improvements in animal welfare’. Both the RSPCA and the AVA reflected on the now defunct Australian Animal Welfare Strategy; the AVA remarked:
At the moment, we feel that, with the Australian Animal Welfare Strategy and a lack of the sort of cohesive, inclusive framework that brought representatives from all sections of society together to address these issues, there is a void there. We feel that that’s fostering a lack of confidence, because there is a lack of information. One of the reasons that we’ve talked in our submission about industry [quality assurance] programs is that we feel that they are a really good way for the people who are striving for very high standards of welfare to demonstrate and brand their product, and to differentiate their product and reassure the public.
The AVA said that it would not like to see the agricultural protection legislation ‘enacted in isolation’ from improvements in animal welfare standards, monitoring and compliance.
The Department of Agriculture reported that states and territories have responsibility for enforcement of animal cruelty and animal welfare standards, and that it works through the Agriculture Ministers’ Forum to coordinate action on animal welfare standards.
There is little doubt that activists who trespass to collect footage or release farm animals do so because they are motivated by a genuine personal commitment to animal welfare. However, this does not negate the harms their actions can cause to farmers, their property, and their livestock, nor the fact that trespassing onto private property is illegal.
The committee understands that evidence is limited in relation to actual instances of disease or contamination arising from specific incidents of activist trespass in Australia. However, the risks associated with biosecurity breaches are sufficiently serious as to warrant strong preventative action. An outbreak of a disease like avian influenza would be devastating for the industry and must be avoided.
Whatever their intentions, activists are not biosecurity experts and their efforts to avoid exposing animals to contamination or disease are not likely to be sufficient. They similarly risk exposing themselves to zoonoses. The committee believes the bill can play an important role in reducing the risk of damaging biosecurity incidents by discouraging individuals from using a carriage service to incite others to trespass on agricultural land.
The committee acknowledges the concerns raised by ARTK and others in relation to potential impacts of the bill on journalism. The committee is confident that the two offences outlined in the bill will be relied upon only in cases where there is an intention to incite trespass. Journalists (however defined) could not be prosecuted for creating or distributing material which inadvertently incites others to trespass.
The committee recognises the legitimate desire among members of the community to understand more about the treatment of farm animals, and the role that greater transparency plays in this regard. The committee supports industry initiatives that provide this transparency and encourages industries to further their efforts in this area.
The committee also acknowledges the calls from the AVA, RSPCA and others for a national welfare strategy and/or national welfare advisory committee in Australia, particularly since the expiration of the Australian Animal Welfare Strategy. While not directly relevant to the bill, the committee encourages the federal government to give these suggestions further consideration.
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.
The committee recommends that the Senate pass the bill.
Senator Amanda Stoker