New Bill aims at protecting Australian primary producers from activist-incited trespass or property damage/theft

Agriculture is identified as a main pillar of the Australian economy, having already contributed over $10.7 billion in production in the year to date, despite facing some of the toughest climatic conditions on record.

In light of the vital role primary producers play in the Australian economy, and indeed internationally, it is therefore no surprise that the Australian Government has taken action to safeguard farmers and agricultural businesses in light of recent activist groups targeting abattoirs and farms (enabled and encouraged by personal information shared online), by introducing the Criminal Code Amendment (Agricultural Protection) Bill 2019 (Cth) into the House of Representatives on 4th July 2019.

Criminal Code Amendment (Agricultural Protection) Bill 2019 (Cth)

While trespass on private property is a criminal offence under existing State and Territory legislation, the Australian Government has identified the need to strengthen protections for farmers and agricultural businesses.

The Bill, if passed, will amend the Criminal Code Act 1993 (Cth) to introduce two new offences relating to the incitement of trespass or property offences on agricultural land, such as the dissemination of information through a carriage service, such as the internet, to encourage others to unlawfully trespass, or unlawfully damage property, on agricultural land.

"Agricultural land" is defined by the Bill as land in Australia used for primary production, regardless of whether part of the land is used for residential or a non-primary production business. What constitutes a "primary production business" in accordance with the Bill is strictly defined, and includes any business involving, amongst other things, grazing, dairy farming, aquaculture, operating an abattoir, bee-keeping or viticulture. 

The two new offences are defined as being "offences relating to use of a carriage service":

• for inciting trespass, property damages, or theft, on agricultural land; or
• for inciting property damage, or theft, on agricultural land.

Trespass

Under the Bill, a person (the offender) will commit an offence by using a carriage service for inciting trespass on agricultural land if the offender:

• transmits, makes available, publishes or otherwise distributes material; and
• does so using a carriage service; and
• does so with the intention of inciting another person to trespass on agricultural land; and
• is reckless as to whether:
  • the trespass of the other person on the agricultural land; or
  • any conduct engaged in by the other person while trespassing on agricultural land

could cause detriment to a primary production business that is being carried out on the agricultural land.

If an offender is found guilty under this provision, they could incur a penalty of imprisonment for up to 12 months.

Property damage or theft

Under the Bill, a person (the offender) will commit an offence by using a carriage service for inciting property damage or theft if the offender:

• transmits, makes available, publishes or otherwise distributes material; and
• does so using a carriage service; and
• does so with the intention of inciting another person to:
  • unlawfully damage property on agricultural land; or
  • unlawfully destroy property on agricultural land; or
  • commit theft of property on agricultural land.

If an offender is found guilty under this provision, they could incur a penalty of imprisonment for up to 5 years. 

For the purposes of this section, theft of property is committed by a person if:

• the property belongs to another person; and
• the person dishonestly appropriates the property with the intention of permanently depriving the other person of the property.

Protections for journalists and whistleblowers

Significantly, the following exceptions have been included in the Bill for the purposes of ensuring journalists or whistleblowers are protected from lawfully disclosing animal cruelty or mistreatment, or other criminal activity.

The proposed offences will not apply to material transmitted, made available, published or otherwise distributed 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.

Moreover, the proposed offences will not apply to conduct engaged in by a person if, as a result of the operation of a Commonwealth, State or Territory law, the person is not subject to any civil or criminal liability for the conduct.

Protecting Australian primary producers

The introduction of the Bill is an encouraging step towards protecting Australian farmers and agricultural businesses from trespass or property damage/theft incited through the online distribution of activist materials. It has been introduced as a deterrent for people considering entering farms and other agricultural land illegally, and has wide-ranging support from farming organisations in Australia.

The Bill has been referred to the Senate Legal and Constitutional Legislation Committee, which will report on the Bill by Friday, 6 September 2019.