Law Council raises concerns over farm trespass laws

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The Law Council of Australia announced that it will raise concerns to the Senate that the Criminal Code Amendment (Agricultural Protection) Bill 2019 could have unintended consequences.

The bill seeks to amend the Criminal Code with the introduction of two new offences that would apply if a carriage service was used to transmit, publish, or distribute materials to incite trespass, property damage or theft on agricultural land. According to the Law Council, proposed farm incitement of trespass laws would duplicate existing state and territory provisions and could stifle legitimate public debate.

“I acknowledge this legislation was an election commitment by the government,” said Arthur Moses, president of the Law Council of Australia. “But we are concerned the legislation doesn’t get the balance right in ensuring legitimate rights and freedoms of expression are not unduly compromised.”

Moses said that, while the Law Council recognised trespass, property damage and theft was unlawful and could cause harm to farming properties, all jurisdictions already had laws criminalising the incitement of such conduct.

“The primary mischief which this bill seeks to deal with is already dealt with by state and territory legislation,” he said. “Overlapping legislation creates unnecessary confusion for members of the public and potential demarcation disputes between federal and state law enforcement. These are matters best dealt with by state and territory law enforcement agencies rather than placing a further burden on our overworked federal law enforcement agencies.

Moses said that the bill could also have a “chilling effect” on debate around issues of food production practices.

“Despite providing exemptions for journalists and whistleblowers, the laws could make media outlets reluctant to pursue legitimate stories, especially given weak whistleblower protections that do not ensure immunity from prosecution,” he said.

To improve the bill, the Law Council has proposed a number of changes, including a requirement to prove disclosure of “offending” material was not in the public interest, limiting the maximum penalty for the proposed offences, and the establishment of a comprehensive whistleblower regime.