EDO has made a submission to the Inquiry into the Provisions of the Right to Farm Bill 2019. Law Reform and Policy Director Rachel Walmsley also spoke to the Inquiry hearing in Parliament House.
Based on our experience and expertise as specialist lawyers, we have four key areas of concern with the proposed Bill.
- First, we see this bill as unnecessary regulation
There is already sufficient regulation of the conduct purportedly targeted – ie. animal welfare activists trespassing on farms. Our view is that the existing legislative framework deals adequately with relevant offences, including trespass, obstruction and criminal damage. We do not support unnecessary or duplicative regulation.
- Secondly, we are concerned with the Scope of the Bill
Despite the purported intention of the Bill to target animal welfare activists trespassing on farms, the framing of the aggravated offence is not confined to achieve that objective and can just as easily apply to other kinds of political protestors and protest actions. In addition, the threshold for the commission of the aggravated offence is lowered by the Bill from interfering with the conduct of a business while trespassing to simply hindering the conduct of a business or undertaking while trespassing. The application of the offence is therefore extremely broad and potentially covers activities significantly beyond animal welfare activists.
- Third, the increased penalties are disproportionate
Despite penalties increases in 2016 – that are awaiting statutory review – the Bill seeks to increase the maximum fine for aggravated trespass again to $22,000, with a potential three year custodial sentence. Such a disproportionate penalty carries with it the potential to create a chilling effect on the preparedness of citizens to participate in legitimate peaceful protest.
The framing of the Bill is sufficiently wide as to capture protest more broadly, rather than what was apparently intended, and therefore apply disproportionately harsh penalties to a wide range of peaceful protest activities. A Bill of such extraordinary breadth must require careful scrutiny in terms of the appropriateness of legislative restraints on the freedom of political communication.
- Finally, we are concerned at the adverse effects of the proposed immunity from nuisance for agricultural activities.
The Bill proposes to create a ‘nuisance shield’ through firstly taking the step of removing any right of recourse to the law of nuisance for certain commercial agricultural activities, and secondly, by modifying the discretion of the Court in remedying nuisance. These proposed amendments are not a proportionate response to the problems identified in the Second Reading Speech. The majority of calls we get to the EDO legal advice line concerning nuisance from agricultural activities are actually from neighbouring farmers themselves, so this approach may simply exacerbate those tensions in rural communities. We submit that other options should be applied to address land use conflicts.
In light of these concerns our recommendation is that the bill is unnecessary, disproportionate and should not proceed. If the Bill does proceed, amendments are needed, and debate on the Bill should be deferred until the statutory review of the previous amendments has been completed, including by undertaking fulsome public consultation and evidence-based analysis of the effect of the amendments.