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.
I want members to imagine they're at home on a nice summer afternoon on their deck looking over the pool, if they are so lucky, and suddenly 30 young people burst through the gate and into the backyard waving placards. That would be a pretty confronting situation. Worse, imagine if they started tearing down the pool fence. That would be enormously distressing. Even worse, imagine if they started slashing the tyres on the ute that you rely on to secure an income for the family—pretty distressing stuff. That's happening on farms and in food-manufacturing facilities on an increasing basis, on an unacceptable level.
There is a difference. If I am at my place, the police station, as the crow flies, is maybe two kilometres away. But if you are on a farm, the police station might be many hundreds of kilometres away. At my place, if activists come through the front gate, I know pretty much immediately that something is going down. But on a sparse property, it might be a day or two before a farmer is aware that trespass has taken place and/or damage has been done.
There is another difference: this is the means of production of the food we rely upon for our lives. So I think it is more than appropriate that parliaments respond in recognition of those additional challenges and the additional importance of us protecting our food production systems. I am delighted that state parliaments have also acted with increased penalties for trespass and damage.
The shadow Attorney, quite rightly—and in a sophisticated way, as you would expect of him—highlighted some deficiencies in this bill, some potential unintended consequences. I am very pleased that it is going to a Senate committee so those issues can be addressed. Let's hope the Senate committee is able to satisfy the shadow Attorney's concerns and, indeed, make some recommendations that make this bill better than it is in its current form before the House.
Sadly, the hype around this bill and the pace at which it is being rammed through this House today suggests that the government is looking for an opportunity to divide, not unite. And on this issue we absolutely should be attempting to unite. We don't want to hear from the Prime Minister, 'Whose side are you on?' This parliament is not divided into two groups: one which supports our farmers and one which does not. That is absolutely not the case. We all stand united behind our farming community—the producers of our food and fibre.
I doubt that the next young person who is recruited on campus and energised and encouraged to join a protest on a farm will ever know anything about this bill or its increased penalties. It is just not the way the world works. Young impressionable kids will go along for the ride even without any commitment to the ideology behind the activists; sometimes it is just for fun. But I do know one thing: they are more likely to enjoy the event—or, if they are ideologically committed, draw satisfaction from the event—if it receives publicity, or the attention of the broader community in some other way. That's what they are looking for; they're trying to make a point. So this is a far more sophisticated question than this bill would suggest. It's a very sophisticated question. Activism is on the rise in many facets of our society, not just in our food production systems. The bill is okay, subject to the Senate review. We want it to be okay; we want it to pass. We want to be told either that there are no unintended consequences or that, if there are, they can be fixed quickly and we can get this bill through, because this bill can do no harm and it does demonstrate that we are watching and expressing concern for farmers and doing all we can to assist.
But there are other key players. First, there is the sector itself. The overwhelming majority of people in the food production system do the right thing, but it's not always the case. There is no group in our society whose members collectively are all the same and do the same thing. Of course, they don't. So we need to work with the sector through its leadership groups to ensure that, while it can never be perfect, we are conscious of changing community attitudes and a higher standard is being imposed on all of us. All of us in this place, I think it's fair to say, are having higher standards imposed upon us. Those in small business are constantly having higher standards imposed upon them through various regulatory regimes, and we need to ensure that the consumer knows with great confidence that our food production system is progressing in a way society would expect it to progress.
Farm leadership groups, of course, have a role to play. I'm going to tell a story, and I'm confident Fiona Simpson won't mind. Fiona, of course, is the president of the National Farmers' Federation. She called me one day when the Aussie Farms Map story first broke and said, 'I hope you're going to come out today and condemn Aussie Farms.' I said, 'No, Fiona, I will not, and I'm hoping you don't either,' because my view is that that's what they're looking for. They want a whole rush of publicity to highlight their protest. To that day, I had never heard of Aussie Farms, and I think that, if Aussie Farms had not got any publicity that day, I may still never have heard of them. We have to be smart about how we respond to these things. Those of us here, as individual members, have to be careful about how we respond to these things, too. Live sheep trade and live cattle trade are great examples. When politicians jump on these things because they see political opportunity in securing political capital as a result of the pain of others, we risk only making the matter worse. Again, we need a more sophisticated response.
But we also need a whole of policy response because, while farm invasions, trespass et cetera are serious matters that we need to respond to collectively, they are just one matter weighing on the budget and on the minds of Australian farmers in this year, 2019. Drought, of course, is weighing most heavily, and I say, after six years in office and after seven years of drought, that this country still lacks an overarching, comprehensive drought policy response. And I suspect that the long dry spells and hot spells we are experiencing are, unfortunately, the new normal. I don't understand why we still don't have a dairy code. I don't understand, with respect to the dairy industry, why all we've got coming is a dairy code. I don't understand why we still don't have an agriculture visa. Workforce is still the biggest challenge facing our agriculture sector, and a so-called agriculture visa may or may not be the answer—the government seems to wax and wane—but I know one thing: up until now, at least, we've had no answer. We've had no response from this government to one of the two most pressing issues facing agriculture, and that's its workforce shortage problems.
I don't understand why, after all this time, we still don't have a biosecurity levy. After the Craik review, the government promised we'd have one by 1 July. Now it says 1 September. But we've seen no draft legislation. If you look at the parliamentary time table, there is no hope of having a biosecurity levy by 1 September. It's not happening. Wendy Craik made it clear: if we want to secure our biosecurity system, we need to put more money into the system. If the government is not prepared to kick it in then we need to get it from industry. Industry is prepared to pay if it's done in a responsible way. Yet, the government hasn't been able to put together a policy design, a tax design, acceptable to industry and hasn't been able to bring legislation into this place to get that job done.
I don't understand why, despite all of the talk, we still haven't built a dam in six years. We've had a dam here. We've had a dam there. We've had a dam everywhere. We've had nothing but talk about dams in this place and on the campaign trial by those who sit opposite, but there's still no dam. We've had plenty of reports, but no action. As I mentioned, I still don't understand why we don't have a comprehensive drought policy. I don't know why so many of our producers still don't have access to the China market, despite all the hype of the free trade agreement. Many of our horticulture products are still locked out. We don't have access to the chilled beef sector, for example, a point of great frustration for the country's largest manufacturing sector, our red meat processing sector.
I don't know why we don't have a plan to lift productivity. I don't know why we don't have a plan to tackle our natural resource misallocation. I don't know why we don't have a plan to tackle one of the other big challenges in agriculture, which is the deteriorating state of our soil resources. We can't lift productivity until we have a serious plan to address those issues. And there is no plan. To paraphrase Fiona Simson—I don't have the quote with me, but I remember it vividly; when I say 'vividly', I can't remember the whole quote—she said at the National Press Club not that long ago: 'In Australia we lack a comprehensive plan for the agriculture sector.' The National Farmers' Federation is a pretty conservative organisation. I think it's fair to say, without offending them, it's pretty close to the conservative parties in this country. So it is more than passing strange that this conservative organisation, after six years of a conservative government, has to declare that this government, which talks so much about our food production system, doesn't have an overarching strategic plan for the agricultural sector.
I think it says, in essence, everything about this government. In question time, they talk incessantly about the agriculture sector. They take every opportunity to draw political capital from the agricultural sector, even though it's at a time when our farmers are hurting, whether it be from trespass, damage or drought. Yet, their response is, at best, piecemeal. It's at best piecemeal. It's certainly not strategic. It's certainly not forward looking. They're always talking about the opportunities, but they don't talk about the challenges. But we can't take advantage of the opportunities if we don't overcome the challenges.
Let us be serious about this bill. Let us join together in supporting what this bill seeks to do. But let us not use this bill or the drought fund—you know, that thing that's on the never-never, which will do very little—as an excuse to do no more. That's what this government does. There will be a Dorothy Dixer a day on the drought fund or on the trespass laws, and those on the other side think that's all they have to do. I must say, given the recent election result, maybe that is all they have to do to retake the Treasury benches. But sooner or later it's going to catch up with them. As the new member for Indi said, our farmers are facing a crisis in terms of a changing climate, and this government have no response whatsoever. All they have are a dozen members and senators freelancing on climate change, saying that climate change is either not real, or, even if it is real, there's nothing we can do about it.
I hope my great-grandchildren will not be lamenting the fact that this government, all those years ago, just declared that there was nothing it could do. We need to demonstrate to them today that we tried our very best. Denial is unacceptable. Action is possible, even if you only subscribe to the precautionary principle—in other words, if you're not sure, do something before it's too late to do something. Let's not have this mob come in here with a trespass bill and run off that for the next year as if it's mission complete; let us have a government, for a change, come in here and present a comprehensive plan for Australia's agricultural sector.
A lot of people make the choice to buy free-range eggs from the supermarket because they hope it means the hens have had a better life and have been able to roam freely. The CSIRO have said that free-range eggs are from 1,500 chickens per hectare. That is the standard that counts: enough room to move. That would be said to be genuinely free range. You think that's what you're getting if you go into a shop in Australia and buy free-range eggs. In Australia the standard by law is not the CSIRO standard of 1,500 hens per hectare but 10,000 chickens per hectare. That's what counts as free range in Australia. A few years ago, Labor and Liberal ministers did a deal to change the rules to say this is now what counts as free range in Australia. If most people found out about that, they would be very concerned. When you're buying free range you wonder whether that's in fact what you're getting—something where the chicken's welfare plays a part. That's only for free range. Free range is up to 10,000; what about all of the hens who are in battery cages? There's nothing to outlaw that. The pain and suffering they go through their whole lives is the untold story behind getting eggs on our table.
The same goes for pigs. You will still find in Australia that when some sows are pregnant they are put in stalls where they have the ability to take one step forward and one step back. That is being phased out in many places, which is a good thing, but it still exists. We can talk about what happens to piglets who get their tails sliced off and teeth cut and so on. We could talk about how we treat our animals when we put them on ships and the countless numbers that die as they're sent off in the live export trade.
If you want to stop people protesting about animal welfare then lift standards of animal welfare and pass legislation to improve conditions for animals on farms in this country. If you're so worried about protesters, the best way to stop them is to remove their cause for protest in the first place. We've been pushing for many years for a national animal cruelty prevention act, a proper independent office for animal welfare and changes to national standards so everyone in this country would feel comfortable knowing animals here are being properly treated. We've met resistance from all the vested interests in this place, who are not prepared to give animals a voice.
Over the last few years some whistleblowers have been prepared to stand up and say, 'We are going to show you some footage of what is actually going on behind the scenes before the animals get to your tables so that you can make an informed choice and that, hopefully, the parliament might see its way clear to changing the law to improve standards for animals in this country.' Instead of dealing with the problem, what is this government's approach? It's to shoot the messenger and say, 'We have no interest in improving conditions for animals in this country; we're just going to do with this what we do—