Animal law in the spotlight: SA Bill acts as “ag-gag”

On 5 June 2014, SA Labor Minister Gail Gago MLC reintroduced the Surveillance Devices Bill 2014 (the Bill). The Bill repeals the Listening and Surveillance Devices Act 1972 (SA) and makes provisions relating to the use of surveillance devices, among other things.

Although, the Bill does not specifically mention agricultural facilities or factory farming, the legislation is consistent with US style ag-gag laws – draconian laws that seek to “gag” animal advocates, the media and agriculture workers from making public the often horrific truths behind factory farming.

If implemented, the Bill will criminalise the release of information derived from unlawful surveillance to the public – stifling transparency, public debate and media investigations into factory farm cruelty.

Effect of the Bill

The Bill effectively:

  • Prohibits the installation, use and maintenance of surveillance devices - both audio and visual - with few exceptions (Sections 4 and 5).
  • Prohibits the use, communication or publishing of information or material derived from the use of surveillance devices in contravention of the act (Section 8).
  • Imposes tough sentences on individuals and corporations found in violation of these provisions, with a maximum penalty of $75,000 for a corporation and $15,000 or imprisonment for 3 years for an individual (Sections 4(1), 5(1) and 8(1)).
  • Prohibits an individual or corporation to possess certain surveillance devices prescribed by the Minister, imposing a maximum penalty of $50,000 for a corporation and $10,000 or imprisonment for 2 years for an individual. (Section 34(3))

There are grounds to use surveillance devices on ‘public interest’ grounds, however, this exemption is severely impeded by the requirement that a court order be obtained before such a device is used (Sections 4(2)(b), 5(3)(b) and 8).

The battle to silence animal advocates

While the Bill does not specifically mention agriculture facilities, the implications for animal advocacy have been considered in its reintroduction. In her Second Reading speech, the Minister Gail Gago MLC explicitly noted that the Bill would receive criticism from animal activists seeking to use undercover surveillance, and praised by farmers seeking to prohibit this conduct.1

The Bill’s reintroduction also comes shortly after the Federal Agriculture Minister, Senator Barnaby Joyce, announced a co-ordinated national effort to crackdown on animal activists gathering and publicising footage collected on factory farms.2 These comments make it clear that this legislation is a response to the success of campaigns to expose the treatment of intensively farmed animals.

Implications for animal protection

Through the use of covert surveillance, activists have created windows into sow-stall piggeries, battery-cage henneries and intensive duck sheds. The footage they collect has provided consumers with a true picture of the conditions in which animals used for food are raised on factory farms, fuelling a movement of ethical consumerism.

Moreover, this footage has been used in court proceedings, resulting in farm handlers being convicted of animal cruelty and neglect, the forced closure of commercial operators, and producers being fined heavily for misleading and deceptive conduct. This bill would make it a crime to release any footage collected covertly, even where it provides evidence of illegal animal cruelty.

While some of industry’s supporters have framed this as an issue of trespass and farmers’ privacy,3 it is important to note that strong legal protections already exist to protect producers from unlawful trespass and the use of undercover surveillance.4 Quite simply, it is already unlawful to trespass onto private property and to use undercover surveillance devices in the manner proposed by the Bill.

It’s clear then that this Bill is not being sought to address a gap in the law, but rather to stifle transparency and to prevent evidence of animal cruelty from being made public.

The Bill must be opposed

The Bill clearly suppresses the public’s right to question the status quo, and in so doing, pose a serious threat, not only to the animal protection movement and consumers, but for free political communication and the ability of all civil groups to engage in legitimate political debate.

Former Justice of the High Court, the Hon. Michael Kirby, eloquently reflected this point in the High Court case, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, where he stated [217, 218]:

“Parliamentary democracies, such as Australia, operate effectively when they are stimulated by debate promoted by community groups. To be successful, such debate often requires media attention. Improvements in the condition of circus animals, in the transport of live sheep for export and in the condition of battery hens followed such community debate. Furthermore, antivivisection and vegetarian groups are entitled, in our representative democracy, to promote their causes, enlisting media coverage….Experience teaches that such topics change over time. In part, they do so because of general discussion in the mass media.”

Ag-gag laws serve only to shield the commercial interests of intensive farming operations and to stifle transparency about factory farming and illegal animal cruelty. This is an illiberal response, and one which should not be enacted into law.

  • 1. “… Animal rights activists wanted to record what they thought were breaches of animal rights; farmers wanted to ban them. … These positions, strongly held, were and are not reconcilable.” Hon. G.E. Gago, Second Reading, Surveillance Devices Bill 2014.
  • 2. Nicole Hasham, “Animal cruelty activists targeted by tough new biosecurity measures” SMH (15 June 2014) http://www.smh.com.au/environment/animals/animal-cruelty-activists-targe....
  • 3. David Leyonhjelm, “Right to privacy no 'gag'”, Stock Journal (23 June 2014) http://www.stockjournal.com.au/blogs/agribuzz-with-david-leyonhjelm/righ....
  • 4. See ss169 and 170 of the Criminal Law Consolidation Act 1935 (SA), which prohibits unlawful trespass on commercial and residential private premises, respectively. The Listening Devices and Surveillance Act 1972 (SA) prohibits the use of a listening device to listen to or record a private conversation without the consent of all the parties to the conversation. There is no specific prohibition on the use of optical surveillance devices in South Australia. However, if you enter private property to use or install an optical surveillance device (such as a camera) you could be liable for trespass or guilty of the offence of criminal trespass under s170A of the Criminal Consolidation Act.