Earlier this month, the Biosecurity Bill 2015 (NSW) passed both Houses of the New South Wales Parliament and was enacted into law (Act). The Act creates new measures to prevent and eliminate biosecurity risks, which is intended to protect humans and animals against disease or harmful biological agents.
Despite this, the Act contains a number of concerning provisions that can be used to target animal activists who conduct undercover surveillance on animal use facilities for the purpose of exposing animal cruelty.
Intent behind the Act
Prior to its introduction, the NSW Minister for Primary Industries Niall Blair stated openly that the Act would be used to target animal activists who trespass onto farms, as they can disrupt farm operations and spread disease.
This echoed earlier remarks made by Federal Minister for Agriculture Barnaby Joyce that the new biosecurity measures being rolled out around Australia were designed to protect farmers from ‘camera-wielding vigilantes’.
The Act followed the introduction of the NSW Farm Incursions Policy by the NSW National Party, which is also aimed at cracking down on the illegal practices of animal activists and others who trespass on farms.
Key concerns with the Act
The Act is lengthy and complex, with a number of potential concerns for animal activists and animal protection groups.
- The Act introduces ill-defined and overly broad offences and duties that could apply to animal activists.
For example, failing to discharge the general biosecurity duty under the Act could apply to animal activists (or “carriers”) who film cruelty on commercial agricultural facilities. This is irrespective of whether those activists pose an actual (as opposed to potential) “biosecurity impact”.1
“Biosecurity impact” is described as an “adverse effect” on the economy, the environment or the community,2 a definition which could conceivably apply to numerous situations. Further, the definition of “carrier” applies to any person who can carry “biosecurity matter”, which is itself defined as disease agents, organic matter, living things other than humans, or anything else declared in the regulations.3 The application of these broad concepts creates a great deal of uncertainty around the scope of the duty, which is problematic given the offence attracts significant penalties.4
- Individuals could be punished even if they do not personally commit an act of trespass.
Penalties apply for individuals who are complicit in an act prohibited by the Act. This includes people who “incite” others to commit an offence.5 This offence is also drafted in extremely uncertain terms. For instance, if the Act is used to target animal activists, could “incite” cover individuals who voice a public opinion that undercover surveillance is currently the most effective way of exposing animal cruelty? Again, significant penalties apply for contraventions of this provision as the “inciter” may be found guilty for the same offence as the original perpetrator.6
- The Act could have implications for unrelated third-parties who receive activist footage, such as animal groups and the media.
A person commits an offence for failing to report something they suspect to be a “biosecurity event”.7 While notifying relevant authorities of potential biosecurity events is clearly important, the notification requirements could extend inappropriately to unrelated third-parties, such as media personnel or animal groups that are given or become aware of recordings of animal cruelty. Given that severe penalties apply for failing to notify,8 the provision could have a chilling effect on the media or other individuals who may become wary of accepting or making undercover footage public in case it gives rise to a notification obligation, or otherwise highlights a failure to notify.
- The Act grants a number of disproportionately wide and ill-defined powers to authorised officers, and the purposes for which these powers can be exercised are extensive.9
In particular, authorised officers are permitted to enter commercial premises “at any reasonable time”, or in the case of an emergency, at any time, and are empowered to use reasonable force.10 On entering the premises, the authorised officer may do anything that in their opinion is necessary to be done for an authorised purpose, including (but not limited to) searching the premises and seizing materials that the authorised officer has reasonable grounds for believing is connected with an offence under the Act.11
Critically, these powers can be exercised without a warrant and without a requirement for the authorised officer to suspect on reasonable grounds that an individual or organisation committed, or is likely to commit, an offence under the Act or regulations.12 These powers appear disproportionate to the stated objectives of the Act, and if used improperly, could trespass on individual rights and liberties.13
The impact of debates on the Act in Parliament
In the course of debate, members of Parliament including Mark Pearson MLC of the Animal Justice Party and Dr Mehreen Faruqi MLC of The NSW Greens raised concerns about the potential for the Act to become an ag-gag instrument. In response, NSW Minister for Primary Industries Niall Blair gave repeated assurances that the Act would not be misused for this purpose; that it is not ag-gag legislation, and that it is not intended to operate prejudicially against animal activists.14
Given the uncertainty of the provisions as outlined above, it may be possible for a court to use Minister Blair’s statements when interpreting these provisions. Under the Interpretation Act 1987 (NSW), consideration may be given to extrinsic materials such as parliamentary debates in limited circumstances, such as to determine the meaning of a provision if it is ambiguous or obscure.15
Whilst Minister Blair’s statements do not make it impossible for activists to be targeted by the Act, it provides the potential for defendants to argue against this application of the Act in court.
Ag-gag is not the answer
As evidence of animal cruelty within animal use industries continues to emerge, the introduction of ag-gag at a state and federal level is deeply concerning. Ag-gag laws are not about protecting animals, but rather about protecting animal use industries from negative publicity.
If Australian politicians are serious about preventing farm trespass, they need to focus on addressing the underlying concerns put forward by animal activists for engaging in this conduct. This includes concerns around the inadequate animal protection standards set by government, ineffective efforts to monitor and enforce compliance with those standards, and a lack of transparency in the way in which animals are treated within animal use industries.
- 1. Sections 22-23 of the Act.
- 2. Section 13 of the Act.
- 3. Sections 10-11 of the Act.
- 4. Under Section 23 of the Act, an offence is characterised as a category 1 offence if a person’s failure to discharge their biosecurity duty was (a) intentional or reckless, and (b) caused, or was likely to cause, a significant biosecurity impact. Under Section 279, the maximum penalty that can be attracted for a category 1 offence is $1,100,000 or imprisonment for 3 years for individuals. Any other offence under Section 23 is a category 2 offence, and under Section 280 attracts a maximum penalty of $220,000 for individuals.
- 5. Section 307(b) of the Act.
- 6. See Sections 279-280 of the Act as discussed in footnote 5 above.
- 7. Sections 38-40 of the Act.
- 8. An intentional or reckless failure to report is deemed a category 1 offence, whereas any other failure to report is deemed a category 2 offence. These attract the penalties under Sections 279-280 of the Act as discussed in footnote 5 above. See Section 40 of the Act.
- 9. See Part 8 Powers of authorised officers in the Act.
- 10. Section 98 of the Act.
- 11. Section 102(1) and (2) of the Act.
- 12. See Sections 98(4), 102.
- 13. Note however that under Section 99 of the Act, entry to premises used only for residential purposes requires permission or warrant.
- 14. See text of the debate in Parliament at: Parliament of New South Wales, Biosecurity Bill 2015 (Proof) (Full Day Hansard Transcript, 8 September 2015) <http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LC20150....
- 15. Interpretation Act 1987 (NSW), Section 34(2)(h).