BILL: Tresspass on Primary Production Premises

Today Mark put the Greens' position on the record in relation to this Bill which increases penalties for farm trespass. As it does not seem to be based on any South Australian experience nor address any of the reasons why animal welfare groups take it upon themselves to trespass on farms, the Greens will oppose the Bill at the third reading unless it is substantially amended.


Summary Offences (Trespass on Primary Production Premises) Amendment Bill 2019

I rise to put the Greens' position on the record in relation to this bill. Our position is quite simple: unless this bill is substantially amended, we will be opposing it at the third reading. The bill, in short, increases penalties for farm trespass. The bill creates a new aggravated offence of farm trespass and it provides that almost every uninvited visit to a farm will in fact be an aggravated offence by virtue of every uninvited visit to a farm posing a potential biosecurity risk.

In short, this bill is overkill and it is misguided. We think it is misguided in a number of ways. Firstly, this bill does not seem to be based on any South Australian experience. The bill, in our view, is a purely political reaction to events that have occurred interstate. It is not a bill that is based on any South Australian experience.

No evidence has been provided on the extent of the problem of farm trespass in South Australia and, therefore, no justification has been provided for the increased penalties, which presumably are on the basis of additional deterrence being required. If there is no history of offending then there is no justification for additional penalties. There is no evidence of any unduly lenient penalties ever being handed out by South Australian magistrates.

In fact, there is no evidence provided at all in relation to the number of farm trespass offences in South Australia, the number of successful or unsuccessful prosecutions, or any penalties handed out. It is a complete fact-free zone. There is no evidence provided in the minister's second reading explanation, or anywhere else, that this is a problem that needs to be addressed in South Australia. There is no evidence that existing laws and existing penalties in relation to trespassing are not an adequate deterrent to unlawful behaviour.

The second reason this bill is misguided is that it does not address many of the reasons why animal welfare groups take it upon themselves to trespass on farms. One of the reasons—in fact I would suggest one of the main reasons, in my experience—is that they suspect or have evidence of breaches of animal cruelty laws and they do not have confidence in law enforcement authorities to investigate those matters in a timely or thorough manner.

This is particularly a problem when our animal welfare law enforcement authorities are understaffed and do not have the power to randomly inspect farming premises. As members know, in South Australia the RSPCA is responsible for enforcing animal cruelty laws. It is a unique situation where public laws are enforced by a private, non-profit charity, with the government paying only around a third of the cost of law enforcement. The majority of law enforcement is funded by private donations and fundraising by the RSPCA.

It is an absolute bargain for the government but, in my view, it is an appalling abrogation of state responsibility to enforce state laws. The public would be outraged if the homicide squad had to run a cake stall to fund a murder investigation but, for decades, the enforcement of animal cruelty laws has been undertaken by the RSPCA and underfunded by the state. That has been a direct cause of much animal activism in South Australia in the past.

I do not bring to this a purely academic approach. In fact, I was very much involved in some of these cases nearly 20 years ago. The one case I drew to the government's attention through the YourSAy website, when they invited submissions on the original draft bill, was the case of Takhar v Animal Liberation. That was a case heard in the Supreme Court of South Australia in the year 2000. I am familiar with that case because I acted as counsel for the respondent.

That case involved a matter directly relevant to the bill before us. Depending on who you talked to, it was either a terrible criminal trespass or, more generously, a late-night, uninvited farm visit. What happened on that occasion was that members of the Animal Liberation organisation stepped over a low fence, entered a battery hen facility through an open door and took video footage of the appalling conditions they found inside. As a result of that visit, and as a result of the video footage that was taken, the chicken farmer was ultimately criminally prosecuted and found guilty of animal cruelty laws. It was entirely as a result of that late-night, uninvited farm visit.

The case I was involved in was a fascinating case where the chicken farmer sought an injunction against Animal Liberation to prevent them from publicly distributing the video footage they had taken. In summary, the chicken farmer's argument was, 'If people saw the conditions of the inside of our battery hen facilities no-one would buy our products anymore,' to which the response was, 'That's sort of the point of the exercise.'

The chicken farmer was prosecuted and found guilty of breaching animal cruelty laws. Interestingly, the video footage ultimately was broadcast on television and elsewhere, and the chicken farmer was obliged to pay legal costs to the Animal Liberation organisation. It is also quite a famous case in the study of the use of the legal system to bring about social change.

I recall that the statement of defence was delivered to the solicitors for the chicken farmer by a person wearing a chicken suit. I think it was probably the first chicken suit that had appeared at the reception counter of this particular Adelaide law firm, but it was a serious matter that was behind it. At the end of the day, a lot more people knew about the condition of battery hen facilities and how eggs were produced than they did before. I think the chicken farmer regretted taking that legal action.

However, I think people now recognise that the reason the egg industry has changed over the years and the reason an increasing number of people in the supermarket go straight to the free-range eggs shelf and bypass the cheaper caged eggs is that they are now aware of the conditions in which chickens are held in battery hen facilities. I ask members to reflect on this: do we know about the condition of these facilities because the farmers voluntarily told us about it? Did they voluntarily hand over video footage saying, 'Dear egg consumers, I thought you might like to know how your food is produced'? No, they did not.

The only way we know what is inside these facilities is because brave people have taken it upon themselves to gather that evidence. It is not just eggs. We have also seen it in relation to hidden cameras that have been placed in abattoirs. My colleague the Hon. Tammy Franks earlier referred to the footage that was obtained in relation to racehorses and how they are treated at the end of their economic and productive lives. We saw hidden cameras used to film abattoirs in Indonesia. In fact, the list goes on.

People have to remember that these things are not brought to public attention by the farmers themselves. They are almost universally brought to public attention because someone somewhere has broken some law: they have trespassed or, in an unauthorised way, they have inserted hidden cameras in a facility. That is the only reason we know what has gone on in these facilities. What this bill seeks to do is to further criminalise the activity of trespass on farms. What people need to think about with these laws is not just whether there is a real problem in South Australia that requires a law reform measure but whether this really is just another way of trying to keep consumers in the dark about how their food is produced.

In my submission to the government—which they, of course, ignored in its entirety, so I am bringing it here by way of amendment—is a provision which says that it is a defence to a charge, under this new bill, if the conduct constituting the offence was for the purpose of identifying, mitigating or preventing ill treatment of an animal. So, in other words, a public interest defence. Another way of looking at it is a defence of necessity.

People often think about this in relation to examples of, say, small children left in cars. We had a shocking case of this in Queensland recently. If you come across a child in a car, clearly suffering from the heat, the car is locked, there is no adult anywhere to be seen, you can see the distress—not just distress, but there is risk to life—and you get a rock and smash that window, you are not going to be charged with causing criminal damage to a motor vehicle. You are more likely to get a medal for heroism.

Similarly, the person who breaks down the door of the burning house to rescue someone who might be inside is not going to be charged with criminal damage to that house, they are probably going to get a medal. The question then is: a person who trespasses on a farm in order to relieve the suffering of a farm animal, an animal that is distressed for want of water or food or whatever reason, is that person a criminal or are they fulfilling a higher public duty if they in fact trespass? You need to think about this not just in relation to risks to human life, but also in relation to risks to animals.

The question of vigilantism, as it is often described in terms of farming, often goes like this: people say, 'Well, these animal activists shouldn't be going anywhere near farms because that's the proper job of law enforcement bodies, such as the RSPCA.' In the case I mentioned before in relation to the chicken farm in the north of Adelaide, mistreatment of the chickens and overcrowding were reported to the RSPCA. They said, 'Look, we actually don't have the power to respond to anonymous tip-offs. We actually need evidence before we can go onto the property.' That was the entire reason why the Animal Liberation activists attended the facility with their video cameras: to provide evidence so the RSPCA could act. When the RSPCA did eventually act, a prosecution was founded.

That was the year 2000. We fast-forward 20 years and what has changed? The RSPCA has written to me, and perhaps to others, in relation to this bill and they point out that not a lot has changed. They do not have the power to undertake unannounced random visits of farms, especially farms where animals are kept. I might just read a couple of sentences from the RSPCA's letter to me under the hand of chief executive officer Paul Stevenson, dated 20 November. What Mr Stevenson says is:

In some cases, there is a genuine public interest motivation underpinning unlawful trespass in terms of exposing otherwise concealed breaches of the Animal Welfare Act. While this does not justify the unlawful trespass, in adding significant additional deterrents to such lawful activity, alternative lawful measures should be considered to satisfy community expectations for proper monitoring of animal welfare. RSPCA proposes in this respect, providing power to Animal Welfare Act inspectors to enter and inspect primary production premises without notice. This would effectively obviate the perceived need for unlawful activities, by providing a lawful and regulated avenue for ensuring animal welfare compliance.

That is pretty clear. The RSPCA is saying if you do not want the animal activists to be going onto these farms in order to gather evidence and to prevent animal suffering, you have to give the proper authorities the power. That means the ability to turn up unannounced.

The law in this area is not as clear as it should be. Again, to quote from a few paragraphs of what the RSPCA has sent to me, under the heading, 'Routine inspections with notice,' the RSPCA says:

At present the RSPCA is empowered to conduct routine inspections on primary production premises under the Animal Welfare Act 1985, however these inspections can only be carried out where reasonable notice has been given to the primary production business. In practice, a primary production business is on notice of the inspection for several days prior to it being conducted. The RSPCA submits that the need to provide notice in this manner undermines the legitimacy of the findings made during these inspections.

I would make the point—something I have referred to many times in this chamber over the last 13 years—that we saw the consequences of inspectors having to give notice in the terribly sad case of young Nikki Robinson, a little four-year-old girl who died as a result of food poisoning in that incident that was known as the Garibaldi food poisoning, involving a smallgoods manufacturer.

The Coroner in that case said, and I am paraphrasing, that it is remarkable that an inspector would give notice to a food premises of their intention to inspect several days beforehand and then be surprised when the factory operator or food producer cleaned the place up. It was as clean as a whistle whenever the inspectors attended. That is a consequence of having to give several days' notice before attending premises.

I will go back to what the RSPCA said. Under the heading, 'Inspections without notice,' they say:

The RSPCA is empowered to enter and inspect premises without notice when an inspector holds a reasonable suspicion that an offence has or will be committed under the Animal Welfare Act…or a reasonable belief that urgent action is necessary to prevent or mitigate serious harm to an animal. Both mechanisms require the RSPCA to be in possession of information capable of justifying the necessary suspicion or belief. The difficulty that arises in the primary production context is the widespread practice of conducting business activities out of the public eye thereby limiting opportunities for public scrutiny. Indeed, the RSPCA relies almost solely upon complaints made by members of the public in order to be on notice of suspected acts of animal ill treatment.

So there is the rub: the RSPCA cannot inspect a premises without notice, unless they have a reasonable suspicion. They cannot get a reasonable suspicion unless they are notified by the public, but most of the activities occur behind closed doors or a long way from public roads and involve trespass in order to get that information.

Finally, in the RSPCA's conclusion in relation to both those previous areas, that is, routine inspection with notice and inspections without notice, the RSPCA says:

The RSPCA submits that, in order to gain public confidence in the primary production industry and prevent unlawful activity on these premises, meaningful supervisory and enforcement powers must be conferred to the relevant investigatory bodies. This could be achieved by providing Animal Welfare Act inspectors with powers to enter and inspect primary production premises without notice. This would ensure legitimate findings in relation to compliance with applicable animal welfare legislation and regulations and would generate substantial public assurance. The conferral of such powers would be analogous to those afforded to authorised officers under s122 of the Liquor Licensing Act 1997.

Let us put those two things in context. We give our liquor licensing inspectors the power to attend, at any reasonable time (which means whenever they are open), a licensed premises in order to ensure the law is being complied with. In other words, they can attend at any time to see whether people underage are being offered beers, but the RSPCA inspectors do not have that same power. They want that power and they make the clear link between their role and that of public vigilantism, namely, that if the RSPCA had the power to undertake unannounced random inspections of facilities, the reasons animal activists use for their needing to enter these premises to obtain information is negated. So it is a logical consequence.

That brings me to the final amendment in my set that has since been tabled, and that is to say that:

Despite section 30(2)(b) of the Animal Welfare Act 1985, an inspector appointed under that Act may, at any time, exercise powers under section 30(1)(a) of the Animal Welfare Act 1985 in respect of primary production premises for the purpose of investigating, mitigating or preventing ill treatment of an animal.

So it is pretty clear: give the RSPCA the powers that it has asked for for 20 years, and then there is less excuse for people to take matters into their own hands by trespassing on farming properties. It is a really clear and logical link. If you do not want activists going onto properties with their cameras rolling and uploading the videos to YouTube, then you have to give the RSPCA the powers to do their job properly.

With those comments, the Greens will support the second reading of the bill in order for us to test the will of the council for these amendments, but when we get to the committee stage I would strongly urge members of the committee to consider what the RSPCA has said and to authorise the appropriate officers to do their jobs properly, if people are serious about the threat, real or imagined, of people taking the law into their own hands and entering farming premises without permission.