Criminal Code Amendment (Agricultural Protection) Bill 2019
The submission to the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) inquiry into the Criminal Code Amendment (Agricultural Protection) Bill 2019 (Cth) (the Bill) was prepared by the Law Council.
The Law Council notes that trespass, property damage and theft is unlawful and acknowledges that such actions in relation to agricultural properties and the premises of primary production businesses can cause significant harm, including the potential to contaminate food safety, breach biosecurity protocols and cause considerable distress to members of the agricultural community.
The Law Council, while not opposed to the provision of protection to farmers against unlawful activity, maintains that it is necessary to balance this aim with the protection of legitimate rights and freedoms. The Law Council’s primary concerns with the proposed measures in their current form are:
- the potentially broad scope of the proposed measures to capture behaviour other than incitement to trespass, that may inhibit legitimate public dialogue;
- the extent to which the proposed measures overlap with existing offences covering similar conduct;
- the adequacy of proposed defences for journalists and whistleblowers; and
- the severity of the penalties attached to the proposed offences.
It is for these reasons that the Law Council does not support the Bill in its current form. However, if the Committee were to conclude that the Bill ought to proceed, the Law Council makes the following recommendations with the view to improving the proportionality of the proposed measures:
- the proposed offence provisions should include a clarification similar to subsection 474.29A(3) of the Criminal Act 1995 (Cth) (Criminal Code) to make it clear that it will not constitute an offence merely because the person uses a carriage service to engage in public discussion or debate about agricultural practices, or advocate for reform of the law relating to agricultural practices, where the person does not intend to incite the commission of any offence;
- the term ‘journalist’ at proposed subsections 474.46(2) and 474.47(2) should be clarified and given a broader meaning such as is used in section 126J of the Evidence Act 1995 (Cth) (Evidence Act);
- the Australian Government should continue to work towards a comprehensive whistleblower regime and establish a Whistleblower Protection Authority;
- in the absence of clear justification, the prosecution should be required to prove as an element of the offence, that the material was not in the public interest to publish; and
- the maximum penalty for the proposed offences of inciting trespass, damaging property or theft, should not exceed the maximum penalty of the substantive offences that are being incited to be committed.
You can read the full submission below.