The Bill would amend the Criminal Code Act 1995 (Cth) (the Criminal Code) to introduce two new offences relating to the incitement of trespass or property offences on agricultural land. The Bill relies on the Commonwealth’s telecommunications power under the Australian Constitution, with the requirement in the offence that the relevant criminal conduct be engaged in using a carriage service.
.The first offence would apply where a person uses a carriage service to transmit, make available, publish or otherwise distribute material with the intent to incite another person to trespass on agricultural land. This offence would require that the person is reckless as to whether the other person’s trespass or related conduct could cause detriment to a primary production business being carried on on the land. A person found guilty of this offence could face up to 12 months’ imprisonment.
The second offence would apply where a person uses a carriage service to transmit, make available, publish or otherwise distribute material with the intent to incite another person to unlawfully damage or destroy property, or commit theft, on agricultural land. A person found guilty of this offence could face up to five years’ imprisonment, to reflect the more serious nature of the incited conduct.‘Agricultural land’ is a defined term in the Bill - land used for a primary production business. Primary production business is defined as including farming businesses, such as chicken farms and piggeries, as well as businesses operating an abattoir or an animal saleyard.
The Bill contains exemptions for journalists and those who are making lawful disclosures of information, including whistleblowers. Under the exemption for journalists, the offences would not apply to material relating to a news report or current affairs report which is in the public interest and is made by a person working in a professional capacity as a journalist. Under the exemption for whistleblowers, the offences would not apply to conduct engaged in by a person if, as a result of the operation of a law of the Commonwealth, a State or a Territory, the person is not subject to civil or criminal liability for the conduct. For example, the offence would not apply to a person who makes a public interest disclosure in accordance with the Public Interest Disclosure Act 2013 (Cth), whistleblower protections under the Corporations Act 2001 (Cth), or in accordance with other Commonwealth, state or territory whistleblower or lawful disclosure regimes.
We should note that use of “a carriage service to menace, harass, or cause offence” is already punishable under section 474.17 of the Criminal Code. It is unlikely that the amendment will effectively address concerns evident in submissions by civil society and other advocates regarding state legislation such as that highlighted here.
The Explanatory Memorandum comments in relation to the ICCPR that
The Bill’s objective is to reduce the malicious use of carriage services to encourage trespass, property damage or theft on private property. The use of a carriage service by perpetrators to communicate or share material with the intention that criminal activity occur, has the potential to contaminate food safety, breach biosecurity protocols and cause distress to members of the community. The extent to which the Bill would restrain the rights provided by [ICCPR] article 17 is a necessary consequence of, and proportionate to, the pursuit of this legitimate objective.
. The ready sharing of material intended to incite a crime is not the type of correspondence article 17 aims to protect. In its preamble, the ICCPR states that “the individual [has] duties to other individuals and to the community to which he belongs” and that “freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights”. The unchecked transmission of materials intended to incite trespass, property damage and theft is incompatible with the goals of the ICCPR and all other international human rights instruments. ... .
Criminalising the use of a carriage service to incite crimes against another’s property promotes the objectives of “freedom from fear” and fosters conditions “whereby everyone may enjoy his civil and political rights”.Further
New sections 474.46 and 474.47, proposed in Schedule 1 to the Bill, would limit an individual’s right to freedom of expression. These sections would criminalise the use of a carriage service to transmit material with the intention of inciting trespass or property damage, destruction or theft, on agricultural land.
. The offences in the Bill are intended to protect the rights of Australian farmers and prevent harm to public order and public health from property offences incited by the use of a carriage service.
Incitement of property offences on agricultural land has the potential to affect the rights of Australian farmers to feel safe on their properties. It also risks harm to public health through the contamination of food, and the breach of biosecurity protocols. Criminalising the use of a carriage service to transmit materials, with the intention to incite trespass, damage property or commit theft on agricultural land is a reasonable and proportionate measure to uphold rights, and protect public health.
In light of the above, the Bill is consistent with the right to freedom of expression. To the extent that the Bill impacts this right, that limitation is reasonable, necessary and proportionate to the objective of protecting public health and the rights of Australian farmers.
