Janet Rice (Victoria, Australian Greens) | Link to this | Hansard source

After that short delay, we're back! Minister, let's go back to the things that would be covered under this act in my state of Victoria. I want to talk you through a scenario. Say there is logging occurring on public land—logging of our precious native forest, which is destroying our natural heritage, destroying threatened wildlife, destroying our water quality and quantity, destroying our carbon stores, destroying our forests. The logs from this logging operation are then transported to a chipmill or a pulp mill where they are going to be processed into woodchips. Protesters who are concerned about this logging operation feel that it is their right, and their civil responsibility in terms of protecting our native forests, to conduct a protest action at this wood processing facility—at this chipmill or pulp mill. Can you confirm for me, then, that it would be an offence under this legislation for any person or organisation to send out an email or a text message encouraging people to join this protest—that that would be caught under the provisions of this legislation?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Well, Senator Rice! Again—the emotive arguments of the Greens! Seventy thousand Australians—proud Australians, most of them in rural and regional Australia—work in the forestry industry. You continue to come in here and behave as if it is not a sustainable industry, with its management based on the best science, where we actually put aside resource for public enjoyment, for our flora and fauna to thrive and for our biodiversity outcomes to be met—

Senator McKim interjecting—

And, indeed, Senator McKim, we put aside resources to sequester carbon. That whole system exists to manage that resource, and 70,000 Australians and their families rely on mum or dad being a logger, like my dad used to be, being a truck driver, working in the woodchip processing plant or what have you. You come in here and say they're somehow not allowed to do that because someone feels that they need to stop that happening. Senator Rice's justification for somebody committing illegal acts was that they feel that this is not fair, despite it being based in science and having exceptional environmental and economic outcomes for the broader community. You say that if somebody feels that they need to stop that action happening they somehow have the right to go onto private property to commit criminal acts. I can tell you, Senator Rice, very clearly that, under this bill, if someone is inciting another Australian to go on private property to harass, intimidate or trespass then they will be captured.

Janet Rice (Victoria, Australian Greens) | Link to this | Hansard source

Thank you for clarifying that, Minister. I note that 88 per cent of the wood produced in this country comes from plantations, and there is no disagreement in this place that everyone wants to see wood coming from those sustainably managed plantations, where the bulk of the jobs are and the bulk of the industry is occurring, go ahead. We are talking about our precious native forests, our old-growth forests, our forests that are home to threatened species such as Leadbeater's possums, greater gliders, long-footed potoroos and Eastern quolls—the species that we were cuddling out in the Senate courtyard earlier this week—that are being destroyed by logging operations.

When people decide that it is their responsibility to stand up for our heritage and our precious forests and they hold a protest action at the mill that is turning those forests into woodchips, that is going to be covered under this bill. That trespass action will not only be covered under state law. Yes, okay; if you're trespassing then there is law that says you cannot do that. When that goes before a court, what often happens is that the court will say, 'There was actually a reason why that trespass was occurring.' If it was a peaceful protest action then that court process would say, 'There were circumstances as to why these people in the community felt the need to be acting to protect our forests and to take protest action to protect our heritage.' But this law goes far beyond that. It criminalises just sharing information about that protest action. It criminalises asking people to come and attend that protest action, to stand up for the protection of their forests for themselves, for our community and for our future. That is what this legislation is doing.

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

I feel the need to respond. Senator, no, this legislation goes in no way towards stopping Australians' right to peaceful protest. What it does say is that if you want to get online, get your mates and say, 'Let's go break into this business, let's go harass this family, let's go steal this stock and let's go cause this biosecurity risk,' then not the trespasser but you, the person inciting it, will be prosecuted. Those who are actually committing the act of trespass, theft, vandalism, harassment et cetera will be prosecuted under state law. Those are the facts.

You stand in here and talk about old-growth forests. You're trying to lock up old-growth hardwood forests that my father planted in the 1960s—40 years ago. Mountain ash forests are planted through Victoria. They're the things that you are now claiming should be part of this lock-up process that the Greens are just so passionate about. Tell anyone that lives in those communities of Walhalla, Erica or anywhere that went through the bushfires in Victoria about that approach to land management. We know it doesn't work.

Rex Patrick (SA, Centre Alliance) | Link to this | Hansard source

Minister, I have a slightly technical question going to the operation of the bill—and I hope you've got children, as I ask you this question!

Say I wrote a tweet that said, 'I don't like such and such happening on a farm and I think we should go and invade that farm,' and I tweeted it to my 1,000 followers. If one of those 1,000 followers then retweets the tweet, does the legislation cover the retweeter?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

My advice is that it can't just be a flippant or offhand comment; it has to be a serious intention to incite people to criminal action, and that will be tested through the court and the gathering of evidence to present there.

Rex Patrick (SA, Centre Alliance) | Link to this | Hansard source

If I understand what you're saying, the person who builds the tweet and clearly has some intent to incite people to go onto a property is covered. When someone retweets that, in some sense they haven't really put in any effort; they've just hit a retweet button. Does that create an offence for the retweeter?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Obviously that would depend on the circumstances. My advice is that a retweet could be construed as flippant. But, again, it would depend on the circumstances. Sometimes Twitter account holders have things in their bios that say 'Retweet doesn't mean endorsement,' for instance. You'd have to consider all aspects of (a) the original tweet and (b) the retweet and the intent of the retweeter—and what evidence you had to making any claims around that—to determine how this would play out in a court. As you can see, it's going to be on a case-by-case basis. But I think we can be confident that the provisions within the act encompass serious intent to incite others to criminal activity, not flippant responses.

Rex Patrick (SA, Centre Alliance) | Link to this | Hansard source

I was going to move to Instagram and then to Facebook and others, but obviously the same principles would apply. Just to give a circumstance: if I were to put a Facebook post up that detailed a bunch of concerns I might have and spelled out a bit of science and then at the bottom I put something that might incite someone to trespass on a farm, another Facebook user may well agree with the fundamentals of what has been put and share that post. Is that the sort of thing that wouldn't be included? Is that the intent of the government in these circumstances?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

As I said earlier, the test or the trigger is on the intention to incite to criminal activity. Talking about changes to farm practice et cetera wouldn't be captured at all.

Rex Patrick (SA, Centre Alliance) | Link to this | Hansard source

So you could stand up in a court and say, 'I agreed with all of the stuff and I didn't really realise the bottom bit had an instruction to attend a farm and trespass,' and that would provide a proper defence?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

The person that would be subject to this law isn't the person that rocks up; it's the person that constructed the Facebook post originally. We've had questions around whether a disclaimer on a website or on a post or a tweet would be sufficient to disprove intention. My advice is: whether the offences would apply to any specific scenario will depend on the circumstances. A disclaimer on a social media tweet or a website may be relevant, but it wouldn't be conclusive as to whether an offence had been committed. The key relevant factor would be the content of any communications transmitted over the internet or on the website.

Rex Patrick (SA, Centre Alliance) | Link to this | Hansard source

I note that this bill can create a custodial sentence that is longer, in some circumstances, than what might happen in a state jurisdiction for the actual act of trespassing. Can you explain the reasoning behind that—that the inciting could result in a longer custodial term than the actual act of trespassing?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

You raise really good questions. The reason we want a nationally consistent approach to incitement is that there needs to be one rule across the nation for the use of the internet and carriage services to incite this. The fact that our states deal with trespass and related issues differently is a problem, which is why it's up for discussion at the agriculture ministers' MINCO, and the Attorney-General has been in contact with his counterparts to discuss how we can have a much more consistent approach. We've applied it in this way because the fact is that, if somebody incites through social media, you can potentially have hundreds or thousands of criminals on your property within hours, destroying stock, destroying your livelihood and harassing your workers and your family, with no warning. That is the pervasiveness and the responsiveness of social media in this case. That is one of the reasons it has such a significant penalty ascribed to it. The person inciting—the keyboard warrior, if you like; so passionate about shutting down the livestock industry in this country, our fishers and our foresters—

Glenn Sterle (WA, Australian Labor Party, Shadow Assistant Minister for Road Safety) | Link to this | Hansard source

Food production.

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Yes, food production; thank you, Senator Sterle—across the country with a click of the keyboard can have potentially thousands of people rocking up on people's private property. We want to take a strong stand against that. We don't think that's right. We think it's criminal activity and that farmers should be able to get on with producing clean, green food not just for us but for the world, without that level of harassment.

Rex Patrick (SA, Centre Alliance) | Link to this | Hansard source

I did say that was my last question, but a supplementary flows from that. I presume, then, it's the intention of the government that the court would take into consideration if, for example, I were to incite someone to trespass via my Twitter account and four people turn up and trespass, that might be a shorter custodial sentence than if I managed to pull together 10,000 people who did the same thing.

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

That is a matter for the judiciary. Our job here today is to decide whether this should become the law of the land. This is a growing issue, despite the public expressing its concerns with how Aussie Farms and other extreme militant animal activists are targeting our farmers, their families and their workers. But I have severe concerns about their actual disregard for common decency, their flagrant flick of the hand about the law of the land. It is absolutely abhorrent that they think it's okay to go into a business and steal. You're not freeing the animals; you're stealing stock, someone's livelihood. Mr Delforce, who runs this Aussie Farms, is remaining defiant about the illegal activities underpinning his cause and that of organisations such as his. Again, their end goal is not about animal welfare; it is to end livestock production in this country. He said it was 'no secret' he believes various livestock industries 'don't have a right to exist anymore' because they're 'barbaric, archaic and so unjust'. He believes they're completely 'unnecessary'. Well, I don't. I stand with Australian farmers, their commitment to animal welfare standards and a bill that will ensure they can continue to uphold high animal welfare standards.

This bill in no way reduces the provisions around somebody taking issues of animal welfare to the appropriate authorities, but it does protect families, communities, our national economy—as this is a nearly $60 billion dollar industry—and hundreds of thousands of jobs out in regional communities now and into the future. I hope that answers your question, Senator Patrick. I commend the amendments.

Larissa Waters (Queensland, Australian Greens) | Link to this | Hansard source

I have a few questions. Did anybody involved in the drafting of this actually seek advice from either AGS or any external legal folk about the principle of needing to have certainty in all drafting, in particular when creating criminal offences? I'm not in charge of this bill, but I am flabbergasted at the lack of certainty. The minister hasn't been able to shed any clarification, simply saying it's a matter for the courts. Surely the scope of the sentence is a matter for the courts, not whether or not an offence has even been conducted? I want to know how on earth this bill has gotten this far and whether anyone responsible for it has actually sought some legal advice, because it seems to me to fly in the face of legal drafting when it comes to criminal liability.

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Senator Waters, of course the government has received advice from a variety of areas in the drafting of the bill. We've adopted that advice, and what you see before you is a bill which goes to protecting farmers from illegal activities.

I thought you would have actually supported wanting to ensure that our farmers, who do the right thing, aren't subjected to illegal acts of stealing, of trespass and of harassment of their kids. If any senator wanted to come in here and contribute to the debate, and hadn't heard the submissions to the Senate inquiry, which went to the very heart of the emotional and economic trauma that occurs when hundreds of people just rock up to your property, I would find it incredible that they could think that that's okay in a civil society. It's not, and we're taking a strong stand.

Senator Patrick's question actually went to how the scope of the sentence would go. This is a maximum of five years jail for people who incite others to do criminal activity. If you're going to incite criminal activity—and it's a high threshold, it has to be proved—then you are going to be subject to up to five years imprisonment. Where that scope of the five years ends up—obviously, as you know as a lawyer—will depend on the circumstances of the case and the judge involved.

Larissa Waters (Queensland, Australian Greens) | Link to this | Hansard source

Thanks, Minister. I understand all that. My point was that you weren't clear, because apparently nobody knows whether a retweet is an incitement. There is a fundamental uncertainty in your mind, as the proposer of this legislation, about when you're going to criminalise activity. That is something that the drafters of legislation are meant to fix. That is not something for the courts to fix. So my next question is: did you seek advice on the likelihood of a challenge to the validity of these laws on the basis of the pervasive uncertainty that underpins them?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

We have consulted widely, Senator, including legal advice on the drafting of bill and the amendments involved. You also know—because you are a lawyer—that what you're raising are hypothetical situations, and incitement and intention are well-prosecuted triggers and levels within the legal system. You know that. What we're setting up here today is a regime where, if you're going to go on and incite others to do illegal activities, you will be subject to imprisonment of up to five years as a criminal offence.

Larissa Waters (Queensland, Australian Greens) | Link to this | Hansard source

So, if there are thousands of retweets, are you seriously telling me that you're going to ask your law enforcement agencies to spend their limited time—because the resourcing is limited, as is the personnel—prosecuting each and every person that retweets?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Senator, again, I said flippant actions aren't considered intention under law, so it will depend on the circumstances and surrounding behaviours around any given retweet.

Larissa Waters (Queensland, Australian Greens) | Link to this | Hansard source

Minister, is 'flippant' your term or is 'flippant' in the bill?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Senator, 'flippant' is my term.

Larissa Waters (Queensland, Australian Greens) | Link to this | Hansard source

I want to take you now to a different issue, although I look forward to the fact that the courts will, in my view, have quite a lot to say about the drafting here. I imagine that the government is exposing itself to legal challenge with regard to the extreme levels of uncertainty that surround this bill. But that's your problem; I don't think this bill should be proceeding at all. But you mentioned in the process of this drafting that the Attorney had been consulting with the states on trespass law. Did the scope of those discussions also cover whether or not farmers should have the right to say no to coal and coal seam gas companies entering their land for the purposes of production or exploration?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

With respect to this bill, which is about incitement to trespass, steal and damage property and harass individuals, the Attorney obviously consulted with his colleagues, yes. When we're consulting on this bill, that's what we consult on. That's the topic of those discussions. I'm sure the Attorney has many conversations with his counterparts around many other issues.

Larissa Waters (Queensland, Australian Greens) | Link to this | Hansard source

Minister, you said that the Attorney was consulting around the scope of trespass law in order to strengthen it. Why are those discussions confined to limiting that strengthening to an extremely narrow and rare cohort of folk? And why are they not discussing strengthening trespass laws so that farmers cannot be harassed and overrun by coal seam gas companies in particular and coalmining companies? We have had years of examples of precisely that happening to some famers on the Darling Downs, to the extent that one in particular, George Bender, took his own life as a direct result of the harassment that he was subjected to by a coal seam gas company. Why are you not talking about those issues? They're the real issues.

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

I won't debate with you, Senator, or your political party, what the real issues are for farmers, but I have advice from the Council of Attorneys-General's communique that attorneys-general discussed strengthening criminal trespass laws to protect agricultural premises. Participants agreed on the importance of addressing trespass on farms and agricultural premises, and undertook to consider options to strengthen trespass and related laws. Several jurisdictions have noted they've already acted.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

I want to take a moment to place on the record exactly what the government is up to here. In an age when the very climate of this planet is breaking down around us, when over a million species are hurtling towards extinction, and when we are in the midst of a biodiversity crisis and a climate emergency, this government is now deliberately criminalising people who wish to mobilise protesters who want to protest against clear-felling native forest. They want to criminalise the work of environment groups who might wish to organise an on-the-ground blockade against a forestry operation that will ultimately strip-mine our native forests, destroy biodiversity and release massive amounts of carbon. Minister, if you can't hear or feel the social contract starting to crack and erode under your feet, you are simply not paying close enough attention.

The social contract is what underpins the institutions of our democracy. It is what gives effect to the public trust that is placed in parliaments, and governments, to make wise decisions for the common good. And it is actions like these, where you deliberately criminalise people who are acting for the common good, who are acting for generations as yet unborn, who are acting for voiceless animals—they can't speak for themselves—that erode the social contract. If you can't feel that happening, Minister, as I said, you are simply not paying close enough attention.

I'll make a prediction here. Over the next couple of decades, you are going to see mass civil disobedience in this country that will dwarf anything we have previously seen in Australia. You will see massive numbers of people taking to the streets, and you know what? They're not going to care what the law says, because they've got a higher purpose: to deliver a sustainable, livable planet for their children and their grandchildren. By enacting laws like this, you are committing a climate crime, you are committing crimes against humanity, and I hope you answer for them one day, Minister.

Senator Duniam interjecting—

You can look around at your staff and have a cackle all you like; I don't care. I don't care, Minister. I want it on the record that I believe you to be a climate criminal and I hope you pay the price for it one day—and you, too, Senator Duniam, for what it's worth.

Minister, my question is about whether creators of games like Pokemon GO might find themselves in breach of this legislation. Now, I've read the explanatory memorandum, so I'm not asking you to read that back to the parliament. The explanatory memorandum is a matter of public record. I've read it closely. But it does in my view throw up some questions—because I'll put it on the record here, Minister, that I genuinely believe that, in your haste and your shoddy drafting of this legislation, you have created at least the possibility that the creators of games like Pokemon GO will be caught under the incitement provisions of this legislation. So, Minister, is it true that you believe that the inclusion of the element of 'recklessness' would inoculate the creators of games such as Pokemon GO against the provisions of this legislation?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Well, chasers of Pikachu are safe! If we pass the legislation, I can assure you, Senator McKim, they are absolutely safe. Firstly, there needs to be the intention to trespass. Secondly, there needs to be a desire to disrupt business. That goes to interruption of the business activity to cause economic loss, damage of property on agricultural land—as I understand it, if you're playing Pokemon GO, you've just got to stand there and catch Pikachu; you're not seeking to damage agricultural land—

Glenn Sterle (WA, Australian Labor Party, Shadow Assistant Minister for Road Safety) | Link to this | Hansard source

What the hell are you talking about?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

I'm just answering the question, Senator Sterle—destruction of property, theft, obstruction of farming, intimidation of staff or the contamination of food products. That goes to the incitement, but then you also need to cause detriment to the business.

Senator McKim interjecting—

Well, that's my advice.

Slade Brockman (WA, Liberal Party) | Link to this | Hansard source

Order, Senator McKim!

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

That's my advice.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

That was your advice. I think your advisers will now give you the advice, Minister, that you're wrong. I just want to be clear here. Firstly, this is about incitement to trespass. It's not about theft or damage or anything else; it's about incitement to trespass. I want you to explain quite clearly how it could be that, as you quite humorously put it, Pikachu is safe. It's not the Pokemon creatures I'm asking about; they're not real. It's a video game. It's augmented reality; it's not actually real. It's actually the people who are playing the game who are real, and, in the context of this legislation, it is actually the creators of the game who may incite trespass by placing one of the not-real Pokemon characters on private property such as a farm or a forestry operation. I want to be clear. In the past the creators of this game have done things like place these not-real Pokemon characters in Hells Angels headquarters. Children have actually chased these not-real characters into Hells Angels headquarters. There was a case in New Zealand where that happened. So these not-real characters that are in video games are placed at times on private property; I think we can all agree on that. I want you to explain very clearly why the creator of an augmented reality game like Pokemon GO which places a character on a farm—I'll just use a farm as an example, but there are a range of other things that could be captured—is not inciting a trespass.

Slade Brockman (WA, Liberal Party) | Link to this | Hansard source

It must be Thursday afternoon!

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

I know who Jigglypuff and Charizard are, so I know they're not real. But, Senator, I gave you the answer. Just so that you know, if you open the bill to page 4, subdivision J, proposed section 474.46—'Using a carriage service for inciting trespass on agricultural land'—you've got to do the transmission over the carriage service:

(d) the offender is reckless as to whether:

(i) the trespass … could cause detriment to a primary production business that is being carried on on the agricultural land.

So they would have to be not just heading onto a private property to capture Jigglypuff; it's actually to cause detriment to the agricultural productive capacity of the private property.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

Minister, I just need to be clear about this. Firstly, the incitement needs to be done with the intent to incite another person to trespass, so that establishes the threshold for the incitement, which is intent. I'll just pause, Minister. It's fair enough that you take advice, but I would like you and your advisers to try to listen to the point I'm making here.

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Well, it's the same point and it's going to be the same point.

Nick McKim (Tasmania, Australian Greens) | Link to this | 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?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

I think the Pokemon GO subscribers of the world will thank you for your detailed analysis here, Senator McKim, because you are right—in the first section of your question. However, under law, 'recklessness' is actually quite a high threshold. That means they have to also be aware of the substantial risk that detriment would occur. If they hadn't, as you said, considered the risk or considered the impact that the trespass would ensure, then they wouldn't be captured by the act.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

I think we've narrowed this discussion down to the legal meaning of the word 'reckless'. So wouldn't it be reckless to be careless or to not care whether or not any trespass could cause detriment? Wouldn't that be reckless?

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

I think you're relying on the colloquial definition of 'reckless'. It is quite a high threshold. You couldn't just wander in and accidentally harm an animal or with just your mere presence intimidate or harass someone. There must be intent. Pokemon GO, as a company that's inciting, does not then have the additional issue of negative behaviour whilst on farm or on property. The thresholds for recklessness are high. You need to be aware of what you're doing and be there with intent to not be reckless. Accidentally causing harm would mean you weren't covered by the bill. Accidentally wandering onto a property to catch Pikachu, and something occurring as a result of that, wouldn't be captured by the bill.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

I'm well aware of that. This bill actually doesn't deal with the person who's trespassing; it deals with the use of a carriage service to incite a trespass. I thought we all understood that—and I hope you do. What I'm saying to you, Minister—and you've gone back in your answer to inciting—

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Pokemon GO, as the inciting body in your example, doesn't actually then expect that its gamers are going to be conducting criminal activity on farm or detriment to the business—as I read out earlier, the types of behaviours that would lead to a loss of economic benefit, the harassment of workers, damage of property et cetera. So first you have to trespass and then you have to cause detriment to the business.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

Yes, understood, Minister. I do understand that. Thank you for your clarification. Either you or one of your colleagues, in casting aspersions on the Australian Greens earlier, posed the question of whether any of us have ever worked on a farm. Well, I can tell you yes, I've worked on a farm, and I want to tell you a quick story, because it's very relevant to the discussion we're having now.

I worked as a shepherd in Scotland on a farm that had probably 2½ thousand ewes, and I was responsible, under the owner of the farm, for the welfare of those sheep. It was during lambing season, which is very cold in the Scottish Highlands, I can assure you. I learnt a really good lesson from the farmer one day. I wasn't brought up on a farm; I was brought up in suburban Hobart. I used to have this habit of climbing farm gates rather than opening them. I remember the farmer giving me a well-deserved lecture—I was quite young at the time, probably 19 or 20 years old—about not climbing farm gates, because it damages the hinges that the gates are hung on. He only had to tell me once. From then on, and ever since, I've opened farm gates instead of climbing over them. That's relevant, Minister, because it is possible that climbing a farm gate could—to use the words of your bill—'cause detriment to a primary production business', because it would damage the hinge and the farmer would have to fork out for a new hinge.

What I'm saying to you, Minister, is: doesn't the Pokemon GO company at least potentially fall foul of this act? Firstly, it has transmitted information on a carriage service with the intention of inciting another person to trespass—I think we've agreed that those provisions, without (d), would catch the company—but then it's also reckless as to whether the person who is committing the trespass could cause detriment to a primary production business, even as simply as by climbing a farm gate on their way onto the property. So when you say Pikachu is safe, Minister, I think the more correct analysis here is: Pikachu is in danger.

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

As we outline in the explanatory memorandum, the creative Pokemon needs to be aware there was a substantial risk that trespass could cause detriment to a primary production business on agricultural land. As you know, Senator McKim, the damage of a couple of hinges does not constitute significant economic impairment to an agricultural business, so I reject your example. I've tried to walk through the trespass piece and the absolute need around incitement, and I'm pretty confident that Pokemon GO, as a company, does not have an expectation that its gamers will be damaging property out there.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

You are so just making stuff up now, Minister! I think it's really important that you understand that the courts read these exchanges when they're trying to determine the will of the parliament. These are really important exchanges. Please don't make this stuff up. It doesn't talk about significant economic impairment in this section, Minister. It actually talks about causing detriment. It doesn't mention significant economic impairment, so your argument there is wrong. And, again, it's not about whether the company—in this case I believe it's Nintendo, but whoever creates the Pokemon GO game—thinks that there might be a detriment to a primary production business; what matters is simply whether or not it was reckless as to whether that might occur.

I'm telling you I don't think you've set the bar in a good place. I don't think you've responded to this issue well enough, and I'm putting on the record that I think it's entirely possible that, if someone chases a Pikachu which has been placed on a private farm and, in chasing that Pikachu, climbs the farm gate and damages a hinge, Nintendo will be caught. I'm standing up for the rights of gamers here, and I'm standing up for the rights of companies that create games like Pokemon GO. In your attempts to criminalise entirely reasonable behaviour that is for the common good—that is designed to address the climate emergency, animal welfare and the biodiversity crisis, because this is about protecting nature, protecting diversity, encouraging strong action on climate change and protecting the carbon that's embedded in our beautiful, magnificent native forests—and criminalise people who are trying to stand up for our children and our future generations, you've cast your net too widely. You have also picked up in your draconian dragnet companies who create video games.

Bridget McKenzie (Victoria, National Party, Minister for Agriculture) | Link to this | Hansard source

Firstly the DPP will have to decide whether any future prosecution is going to be in the public interest. That's the threshold question. Given your comments that the court should read these proceedings—poor things!—for how they're actually going to consider decisions around this legislation in the future, let me make it very clear to any future judge: Charizard, Pikachu and Jigglypuff are safe from this bill and the amendment. It is not intended to capture Pokemon GO participants and gamers. What it is intended to capture are those who wilfully, militantly and extremely target our farmers, fishers and foresters, their families, their workers and their livestock, and those who seek to disrupt those people's right to farm in this country.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

In your response, you referenced the fact that—I think you said—the DPP needs to consider whether or not a prosecution is in the public interest. I'll just remind you that Mr Bernard Collaery is currently being prosecuted on the recommendation of the Commonwealth DPP. That is an outrageous abuse of powers. It is clearly not in the public interest that Mr Collaery be prosecuted, because that prosecution has an absolutely chilling effect on people who may wish to blow the whistle. There was undoubtedly criminal activity by some people who were inside Australia's intelligence apparatus at the time. They made the decision to bug the East Timorese government's private discussions when we were negotiating a treaty with East Timor—one that involved Alexander Downer, who then rolled out the door into a cushy consultancy with Woodside Petroleum. Funnily enough, Woodside was the corporation that actually stood to financially benefit the most from the illegal spying that was conducted on our near neighbour—and should-be very close friend—Timor-Leste. So please don't offer to me the public interest test that the DPP is supposed to go through before a prosecution is mounted because, clearly, either that test is broken or the way the DPP applies it is broken. I offer you exhibit A: the prosecution and the charging of Mr Bernard Collaery and Witness K. That offers me no comfort at all. I can't believe I have to keep telling you this, Minister: it's not the Pokemon characters I'm worried about; they're not real. What I am worried about are the creators of the game. They are the people who I believe fall foul of this legislation, and nothing that you have said has offered me comfort.

Can I ask: if a group which organises fishing trips for its members arranges online to meet at a certain site that happens to be on private land and then they take a few fish out of a creek or a dam on private land, do you think they might fall foul of this legislation?

Slade Brockman (WA, Liberal Party) | Link to this | Hansard source

The question is that amendment (1) on sheet QL133 be agreed to.

Slade Brockman (WA, Liberal Party) | Link to this | Hansard source

The question now is that government amendments (2) to (5) on sheet QL133 be agreed to.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.