Nick McKim (Tasmania, Australian Greens) | Hansard source

It may or may not be, but you won't know till I've finished the question, will you? I understand that the threshold around the incitement is that there has to be an intention. That's in 474.46(1)(c): the transmission needs to be done with the intent of inciting another person to trespass. So we're agreed on that. Then in (d), which is the provision you've just quoted to me, the threshold is actually not intention; it's recklessness. Wouldn't it be the case that, if the creator of a game such as Pokemon GO placed a character in a farm, that would satisfy (1)(c)—in other words, that is an intentional incitement to trespass? I don't think there'd be any argument from you on that, because your argument is that (d) is the element which inoculates the makers of a game like Pokemon GO from the provisions. So the creator of a game has put a Pokemon GO character on a piece of farmland, and that's an incitement to trespass of itself. However, if they have not considered, in the placement of that character on the farmland, whether the trespass could cause detriment, haven't they been reckless as to whether it could cause detriment?