Thursday, 1 August 2019
Criminal Code Amendment (Agricultural Protection) Bill 2019; Second Reading
Labor strongly agrees that farmers and those in other agricultural businesses should not be subject to intimidating and unlawful actions by activists trespassing on their land. Of course the theft or destruction of farmers' property is unlawful. And, if there are gaps in the criminal law that permit such behaviour to go unpunished, it is appropriate for the government to legislate to fill those gaps. But are there gaps in the criminal bill that this bill now before the House, the Criminal Code Amendment (Agricultural Protection) Bill 2019, will address? Or is this bill primarily a political device from a tired, third-term government which has run out of ideas—because, as the last few weeks have shown, this is a government that is focused almost exclusively on the political benefit it thinks it can squeeze out of parliamentary debate, rather than on doing the work required to design and pass legislation that will actually benefit our nation. As we know, this is a government that had run out of ideas long before it ran on a thin and cynical election platform focused almost entirely on what it wouldn't do rather than on what it would, and now, back in government for a third term, it is still desperately searching for a reason to be here.
We in Labor haven't yet had a chance to fully audit the criminal laws in all states and territories with respect to the subject matter of this bill, but our preliminary examination of those laws suggests that, if passed, this bill may add little to the legal protections that farmers already have against those who would trespass on their land, damage or steal their property or incite those crimes to be committed by others. The fact is that the criminal laws of all six states and both territories already prohibit trespass to property. The criminal laws of the states and territories already prohibit damage to and theft of property. The criminal laws of the states and territories already prohibit inciting, counselling, procuring or sharing in a common purpose in the commission of criminal offences of this kind.
As an example of this, I note that just last week the New South Wales government announced that it would be passing tougher new laws in this area, including $1,000 on-the-spot fines for trespass to an agricultural property. Because of longstanding state and territory laws already prohibiting the conduct that is the subject of this bill, legal experts have, not surprisingly, raised concerns that this bill may do nothing but complicate the existing legal framework. In the process, this could have unintended consequences and end up doing nothing to improve existing legal protections for farmers.
Aware of these problems of jurisdictional overlap and a range of concerns with this bill that I'll come to shortly, on 4 July this year the Senate referred this bill to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 6 September 2019. I have no doubt that the Senate committee will look carefully at the overlap between the offences proposed by this bill and existing state and territory laws that already criminalise trespass, damage to property and theft and that could already form the basis of criminal liability for those who incite those offences. Labor will carefully review the report of that committee when it is delivered. The Senate committee is likely to examine a number of other matters, too.
Australians are rightly proud of our nation's robust democracy, which is founded in part on a guarantee of freedom of political communication. That fundamental freedom has been recognised by the High Court of Australia as a right implied by our Constitution and the system of representative government that the Constitution establishes. As part of our history and character as a robust democracy, we in Labor believe in upholding the right of all Australians to call for and engage in lawful protest action. We in Labor also believe that protest activity should not involve unlawful trespass on private land and damage or theft of private property. But concerns have been raised that the laws this bill would create might be used to try to prosecute and perhaps jail those who merely call for protest on the internet. No federal laws should unduly restrict the basic democratic rights of Australians, particularly when those rights are being exercised to merely call for action to be taken against something that almost all Australians, including all of our farmers, deplore: the mistreatment of animals.
Similarly, farmers themselves may become targets of the laws that this bill would create. The Lock the Gate Alliance and other organisations have sought to organise to protect farmers from unwanted resource developments on their farms. If farmers call for or engage in protest actions that involve any trespass to agricultural land, could they be jailed under the laws in this bill? For these reasons, too, Labor will be carefully examining and consulting with stakeholders on this bill over the coming weeks to ensure that it does not have any unintended consequences in terms of criminalising the mere discussion of protest actions online, including by farmers themselves.
I say again: our concern is not about the stated intent of this bill but, given the repeated and proven incompetence of this government, about whether it has been appropriately drafted to ensure it actually improves legal protections for farmers without infringing on basic democratic rights and freedoms enjoyed by all Australians.
Labor is also concerned to ensure that this bill will not criminalise the actions of whistleblowers and journalists who are seeking to expose and prevent illegal cruelty to animals. While the government claims the bill will provide adequate protection for journalists and whistleblowers, over recent weeks Australians have had graphically demonstrated the Morrison government's contempt for the public's right to know, particularly when those activities embarrass the government. The Morrison government has clearly shown its willingness to use the criminal law and police to intimidate independent journalists and whistleblowers who seek to expose wrongdoing. We in Labor are concerned to ensure that this bill will not add to the already unacceptable list of threats to journalists and whistleblowers, and are not prepared to accept at face value the Morrison government's promise that journalists and whistleblowers will be protected from these laws.
The protections in this bill are expressed to extend to material relating to a news or current affairs report that is made by a journalist in the public interest and in their professional capacity, but this takes the form of a defence with a reverse onus of proof rather than a full exemption from the law. Members of this government have on occasion criticised reverse onus provisions, but they seem to have no hesitation in creating new reverse onus provisions when they're trying to shut down the public's right to know about wrongdoing. This is a government which hates with a passion those who expose wrongdoing and corruption by the powerful. Australians have not forgotten the royal commission into banking, a royal commission that the members of this government fought tooth and nail against. A royal commission that the Prime Minister himself derided for years as a populist whinge. The Morrison government seems to have no problem with rampant law-breaking when that law-breaking is by wealthy companies acting against the interests of poor Australians, including farmers.
But those who the Morrison government really hate, who the Morrison government really want to throw into jail, are those who reveal wrongdoing. It is those troublesome whistleblowers, who risk their careers to reveal systemic crimes by the Morrison government's mates, that the Morrison government thinks must be punished. Given the Morrison government's appalling record on corruption, it is unsurprising that the protection for whistleblowers in this bill also appears to be very limited. The protection is expressed as a defence, again with the onus on the defendant to demonstrate it applies, where statements by the alleged offender would otherwise be protected by state or Commonwealth law, such as public interest disclosures in accordance with the Public Interest Disclosure Act 2013 of the Commonwealth. This defence appears far too narrow to be of much practical use in circumstances where a person could be charged with offences this bill creates—for example, the claimed protections for whistleblowers in this bill would appear not to protect a farm worker who sought to expose unlawful cruelty to animals at the farm on which he or she worked. The adequacy of the whistleblower protections in this bill is therefore another matter for consideration by the Senate committee.
Labor is also examining whether this bill may criminalise legitimate industrial action by unions, such as actions to improve worker safety at Australian abattoirs or to expose foreign worker exploitation on farms. Concerns have also been raised about whether this bill may have unintended consequences for access to land by holders of native title. The need to carefully examine the interaction of these newly proposed criminal laws with existing native title laws is another reason why Labor is concerned that these laws should receive appropriate consultation and review. Labor understands that the vast majority of Australian farmers respect the law and care for the animals that are their livelihood. I am sure that a similar vast majority of farmers would agree with us that laws should not be made that have the unintended effect of criminalising legitimate journalism and whistleblowing by those who would seek to expose wrongdoing.
This bill was introduced only three weeks ago, and there has not been time for public feedback and rigorous consideration of its potential impacts. Labor is concerned that the government is seeking to push criminal legislation through the parliament without time for proper consultation and review. And to again make Labor's position clear: our concerns are not with the stated purpose of the bill, but with the many potential unintended consequences that could flow should this bill become law. For these reasons, Labor will not oppose the bill's passage through the House and will announce our position when the bill comes before the other place, following consultation with farmers and legal experts, and following review of the recommendations of the report on the bill by the Senate Legal and Constitutional Affairs Legislation Committee. I would invite the government also to carefully review the matters that are raised in that Senate committee inquiry.