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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Summary Offences (Trespass on Primary Production Premises) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 November 2019.)

Mr BASHAM (Finniss) (15:45): I rise to speak in support of the Summary Offences (Trespass on Primary Production Premises) Amendment Bill 2019. I personally have very strongly advocated for tougher penalties to deter illegal activism which targets legitimate farming and primary production businesses. I commend the Attorney-General for her work on this bill and the Minister Primary Industries and Regional Development for his work consulting with farmers and stakeholders.

In my previous role in the dairy industry, one of the roles I held was chair of animal health and welfare for the dairy industry right across Australia. In that role, I learnt a lot in this space about the difficulties that businesses face from activists coming onto their premises and causing enormous disruption in the way they conduct their business. Particularly, when we see people illegally come onto properties, my great concern is the risk they pose to the animals and the biosecurity of the property they invade.

There are many reasons why we need to make sure we look after the boundaries of a property. Firstly, on the biosecurity aspects, every time someone enters a property, there is a chance that they may bring something onto that property with them that is not wanted, whether it be some seeds on their shoes or, even worse, some disease that is from another property, which may infect the animals on the property they have entered. We need to make sure that those businesses are protected from that incursion.

The problem with biosecurity breaches is that they can last for years and years. It might just be one small weed seed that gets onto that property, but that can cause problems. That can cause plants to grow that may even be poisonous to some of the livestock on the property, which has to be managed for years. We need to make sure that that risk is eliminated, but we also need to eliminate the risk of strangers entering a property and disturbing the animals.

As a dairy farmer, I would often have people come and see me while I was milking. Cows are very much creatures of habit. If there is anyone extra in their environment, they get agitated and bit excited about what is going on. When I am there, I am able to manage that, but if the operators of the farm are not around when that occurs, anything can happen. Animals can get spooked so much they can break through fences or gates and end up injuring themselves. We do not want to see that. We cannot see that. We need to make sure those people and those businesses are protected from that risk.

In my roles over the years, I have seen some significant issues on properties and farms. I remember one situation back in 2003 at Portland in Victoria when a load of sheep were destined to go to the Middle East. An activist went in there and fed them some ham, which made them unsuitable to be exported to the Middle East because they were no longer halal; they could not be used for that purpose.

What was even sadder was that they had actually been treated with medication to deal with disease issues in the Middle East so that they could go to the Middle East, but that meant they could not come back into the Australian system. So we had this large proportion of sheep stuck, unable to be processed one way or the other, and those sheep had to be destroyed and removed from the food chain because someone had fed them ham. It is just outrageous that that occurred.

In March this year, a family-owned feedlot at a dairy in Millmerran in southern Queensland, which happens to be right next door to a very close friend of mine, was invaded by a group of about 100 activists. There was a risk to biosecurity and the family felt threatened in their own home after those people invaded their property. Cattle were being mixed up in groups as the activists opened gates to allow the cattle to move through parts of the property they were not allowed on. Sadly, the police were just standing on the side of the road because there were too few police to deal with the number of activists. Only two out of the 100 trespassers were fined. Security cameras have now been installed on that feedlot at Millmerran to manage that going forward.

I congratulate the Morrison government on putting through the Criminal Code Amendment (Agricultural Protection) Act in 2019 to strengthen penalties in this area. First offences now 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. It is great that we now have the ability to stop some of that mass use of social media and other means that encourage people to break the law in this area.

It is great that the Attorney has brought a bill before us to increase penalties. The new aggravated trespass offence will penalise a person who trespasses on primary production land and interferes with the conduct of the business, does anything to put the safety of the people at risk or increases the risk of biosecurity and food contamination impacts. That has a fine of up to $10,000 or 12 months' imprisonment.

We have seen an increase in penalties for interfering with farm gates. I was doing a quick sum of the farm gates on my property at Mount Compass. We have 7½ kilometres of road fencing with 22 farm gates that open out onto the road. It is almost impossible to check those gates, even on a daily basis, to see whether anyone has interfered with them. We have to rely on the community not interfering with our gates. It is important that we stop people from maliciously opening gates and allowing cattle onto the roads, thereby putting the animals and the people driving down those roads at risk.

We have also seen the doubling of existing penalties for trespass offences when they take place on primary production land. It is sad that in our society we have to go down the path of putting these extra penalties in place. It is obvious to me that we should not be trespassing and interfering with people's legal activities. It is legal to run a dairy farm. It is legal to run a sheep farm. It is legal to run a cattle farm. Those businesses should be allowed to operate legally. If there is a breach of animal welfare on those properties, we also need to call that out.

In my time working with industry, if we found out there was a problem on a particular property, we would go in there and make sure that it was addressed. We would make sure that those farmers not doing the right thing were brought to account. The dairy, cattle, sheep, pork and chicken industries all want their participants to do the right thing, and they are more than happy to call them out when they do not.

In my time in leadership roles in the dairy industry, which spans about 11 years, I can remember only three dairy industry welfare cases. Sadly, in the case of all three, the farmers themselves were suffering through illness. Two out of the three cases related to mental illness and the third one was a case of extreme financial distress. Animal welfare is at the heart of farming. Farmers do everything they can to look after their livestock. It is only when they cannot look after themselves that they cannot look after their livestock. It is so important that we help farmers and protect them from the pressures of having someone come onto their farm, their home, and make sure they can continue to do what they do so well.

The standard Australia has in relation to animal welfare is second to none. We as a community insist that we do the right thing. We insist as a world participant in animal welfare that the rest of the world tries to do the right thing, too. I very much thank the Attorney-General and the Minister for Primary Industries for bringing this forward.

I want to again say that many farmers are not just businesses. They have family homes where generations have often lived, and they must be protected from illegal activities that threaten the livelihoods, their property and the personal safety of the people who live and work there. It is my expectation that the authorities will apply these new penalties with vigour to ensure our farmers and their primary industries have the full protection of the law.

Mr TRELOAR (Flinders) (15:56): I rise today to support the Summary Offences (Trespass on Primary Production Premises) Amendment Bill. I am pleased to hear that the opposition is also prepared to support this bill. I will declare an interest at this stage of the debate: for 30 years prior to coming into this place I was an active farmer. We ran livestock on our property and, in fact, the property is share-farmed by my son-in-law and his brothers, but we still run sheep on the property.

Across the country, there has been a huge surge in antifarm activism. This has predominantly occurred in the Eastern States, and South Australia has remained somewhat protected from this activism. That said, some of our farmers have experienced trespass, halting their primary production and impacting their ability to manage their farms. I think the member for Hammond—if he has not already—will talk about the incident that occurred at the Strathalbyn abattoir. It is interesting that many of these activists do not travel too far from major metropolitan areas. For that reason—and I think the member for Giles mentioned it when he was talking about his trip to Buckleboo the other day—the more remote places, the more remote livestock producers, are less likely to see visits from animal activists.

Those who seek to be negligent and do damage to our farmers and primary producers must take responsibility for their actions and their impact on our local farmers. This bill seeks to do that. South Australia's primary industries are a vital part of our state's economy. Spread across the state, South Australia's grain, livestock, horticulture, wine, seafood, forest and dairy sectors are significant contributors to our exports.

Remember that the farmers who are producing livestock—and essentially we are talking about livestock activities here because that seems to be the activity that has gained the ire of our activists—are actually running a business. They are running a legitimate and legal business. They are producing income for themselves and their family and they are producing income for the state through both the domestic market and the export market. Almost all these farmers also live on the farm where they do business, so people need to be conscious and cognisant of the fact that not only are they entering a property but they are entering a business and often a home as well.

Numerically, in 2017-18 primary industries and agribusiness supported 152,000 jobs and contributed almost $20 billion to the state's economy. Regional South Australia, where many of our primary producers are of course, contributes about $25 billion to the state's economy with just 29 per cent of the state's population and engages about one in five working Australians.

Primarily, we are talking about livestock industries in relation to this bill, and the major livestock industries of this state include beef, sheep, pig and chicken meat, with a total primary production value of $1.89 billion. There are over 11 million sheep, but I remember a time when it was up around 17 million. Our shearing gangs would have been busy then, member for Hammond. That has seen a drop after the collapse of the Wool Reserve Price Scheme, but slowly but surely the sheep numbers have lifted, although they are being impacted by the dry conditions. There are 950,000 head of cattle and 57 million kilograms of wool produced. Even though the wool market has been bouncing around a bit of late, it still remains relatively firm compared with where it was.

The member for Finniss will be familiar with and well versed in the dairy sector. It has had an 11 per cent increase in production value in 2017-18 to over $200 million, and the wool sector production is valued at $568 million in 2017-18. Combined, South Australia's cattle and sheep industries generate $3.4 billion in revenue. South Australia's beef industry alone grosses a revenue in excess of $1.3 billion, so we are not talking about insignificant industries that are potentially being impacted upon by visitations from activists.

Aquaculture also gets a mention in all of this. I have not known or been aware of any impact on any aquaculture ventures at this point. That said, much of South Australia's aquaculture exists within my electorate of course, including oysters, kingfish, and tuna ranching, which is vertically integrated with the pilchard industry and processing. So, once again, perhaps geography and distance will prevent any issues at this point in time at least.

In 2017-18, the wild catch and aquaculture industries produced approximately 70,000 tonnes of seafood, generating a total revenue of over $500 million. Southern bluefin tuna is the state's largest single aquaculture product, with international exports of over $100 million in 2017-18. The southern rock lobster is the state's highest value fishery at $125 million and, if we add to that the northern zone rock lobster—which exists from Kangaroo Island and up the West Coast—you can see that they are significantly valuable industries.

We have recently seen in Australia the arrival of the Aussie Farms animal activist website. To anyone who wants to look at it, this website provides maps with the locations of meat-processing facilities, horseracing tracks, showground pens, dairies, chicken and pig farms, sheep and cattle properties and aquaculture sites, including those in South Australia. As I said earlier, farms are often the homes of families, mums and dads with young children, and it is important that people feel safe in their home and their workplace.

There are concerns—hence this legislation—that activists may now target South Australian farms with little appreciation or understanding of the biosecurity threats that unauthorised access can pose to industry, and the member for Finniss talked extensively about the biosecurity threats. Essentially, disease and weeds are being introduced potentially to properties that are otherwise free of them without any consideration of that biosecurity stance.

A strong and effective biosecurity system is a priority for the South Australian government. It is essential for maintaining and increasing access to international and domestic markets. Remember, we are essentially a primary production sector that exports, and there are huge markets and huge opportunities in Asia, of course, and we wish to maintain them.

Farmers are constantly improving their on-farm practices in recognition of consumer expectations and in response to up-to-date biosecurity and animal management advice. Good farmers look after their animals and rarely are animals neglected on a property. If they are, there is generally a reason for it and that can be determined and that particular property owner, business and farmer can be assisted.

Disruption to farming practices by protesters is an ongoing risk that needs to be managed in a sensitive and reasonable fashion, and our farmers need support to be informed about how to deal with these challenges, their rights and what steps they can take should their farms become targeted. There has been extensive consultation in the lead-up to this bill and I congratulate all members of the government for their work, and the Attorney-General and also the member for Finniss for their work in preparing this.

The stakeholders consulted were, in the broad, primary production industries as well as the justice sector and the general community. They included the Australian Chicken Growers Council, the Australian Lot Feeders' Association, the Australian Meat Industry Council, the Commercial Egg Farmers Association of South Australia and Tasmania—there you go, a combined effort—the Commissioner of Police, the Law Society of South Australia, Livestock SA, Minister for Environment and Water, National Farmers' Federation, Kangaroo Industries Association of Australia, PIRSA, Pork SA, Primary Producers SA, the Royal Society for the Prevention of Cruelty to Animals (RSPCA) and the South Australian Dairyfarmers' Association. I commend the bill and I do expect that this adds an extra deterrent to people who might wish to interfere with others' lives and businesses.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:06): I thank all members for their contribution to the debate on this bill, in particular the expression of support for the government's bill from the opposition by the member for Kaurna. I also take the opportunity to answer some questions raised by the member for Kaurna during a briefing on the bill, attended by my advisers and the Attorney-General's Department, and during his second reading contribution yesterday.

Firstly, why make farms, as distinct from any other primary industry, a special case such that it needs to have new standalone trespass offences and increased penalties in respect of other offences committed against farms? The member will note that the new definition to be added in for 'primary production activities' does extend beyond farms, and I would urge him to have a look at that, but it is true that the proposal here is to deal with primary production enterprises.

Quite simply, South Australia's primary production industries are a vital part of our state's economy, a significant contributor to our exports—this has been outlined by a number of the speakers on this bill—and to our ability to feed our own population. This bill goes a small way to protecting our produce and our growth for a long-term and sustainable future. Again, in that regard I urge the member to refresh his memory on the definition proposed for 'primary production activities'. It also allows for further prescription by regulation.

Secondly, why has the current law of trespass not been used in farming cases? Although I do not have the data available to me now, I have made presentations to the parliament in relation to examples of trespass. Exactly how often this has occurred that has resulted in prosecution and conviction is not here today, but I remind the member that, as has been advised by SAPOL, there are a number of reasons why they are called onto properties to deal with persons who are trespassing. It may be that they have overstayed their welcome, they are no longer the lawful owner, or it might be somebody going in to pick mushrooms. They are disturbing the quiet occupation of the property and have no intention to be animal activists or anything else.

In relation to the latter, that has been less frequent in this state, as was previously identified, although the impact of the recent case in late 2018 at Strathalbyn ought to be clear to everyone of what can occur. I am advised, and I understand the member for Kaurna was advised by a memorandum of email, that the Strathalbyn meatworks incident resulted in 23 protesters being arrested for trespass or unlawfully on the premises, all of whom were subsequently issued an adult caution. The protest on that occasion involved a sit-in that lasted for some 10 hours.

The purpose of this legislation is to be pre-emptive. It responds to a request around the country, as I have indicated, to all attorneys-general to address this issue within their jurisdictions. It follows the work of the commonwealth in dealing immediately with the new offence of using the internet, essentially, to incite someone to enter upon a property in these circumstances.

The bill also specifically responds to advice that was provided by the Commissioner of Police in June that, while there had not been a great deal of organised protest activity in general farming operations, as the Animal Liberation movement grew nationally it was likely, in their view, that South Australia will see an increase in frequency of protest activity undertaken by these groups.

Thirdly, I am advised that, although the Surveillance Devices Act 2016 contains a public interest exemption to the general prohibition against using a surveillance device to record a private activity or conversation, this does not mean that the person then has a lawful excuse—in other words, an entitlement or a right—to commit a crime by entering another person's premises without their consent to use or plant the device.

Fourthly, the new aggravated farm trespass offence in the bill is broad in scope. In particular, it will capture anything that gives rise to a serious risk to the safety of the person or any other persons on the premises, or anything that involves or gives rise to a risk of the introduction, spread or increase of a disease or pest, or the contamination or any substance or thing. Again, many members in this debate have contributed examples of where that has occurred, even to the extent of bacon being fed to pigs, which disqualifies the meat from being able to be exported. So there are massive consequences in those circumstances.

Concern has been expressed by the member for Kaurna that the word 'risk' in this context is uncertain and that it is difficult to imagine a scenario that does not involve some level of risk of bringing disease, pests or contamination of some sort onto a primary production premises. There are three points I would like to make to alleviate those concerns. Firstly, if the bill is passed it would not be the first instance of the use of the expression 'risk' in the Summary Offences Act.

An example of forming of a belief that there is a risk to public order and safety, which triggers the power of the police officer to order a person to leave a declared public precinct, under section 66O, is relevant to other public precinct provisions in the act. Also, section 83BA refers to the forming of an opinion that there is a serious risk of injury or damage due to the overcrowding at a public venue, which triggers a senior police officer's power to direct that people leave the venue immediately.

These examples suggest that forming a view as to the existence of a risk of certain matters is something that the parliament has previously been comfortable to leave to the discretion of the police officers involved. It can therefore be safely assumed that the police would be capable of forming a judgement on whether certain conduct gave rise to a risk of spreading disease, pests or contamination on primary production premises.

Secondly, it is the government's policy that the highest penalty under section 17 should apply only to aggravated farm trespass. In those cases where no aggravation can be established, which might be uncommon but it is more than a hypothetical possibility, only the non-aggravated penalty should apply. Also, we can also reasonably assume that the police would not use their prosecutorial discretion to prosecute a person for a mere theoretical or negligible risk.

Another matter raised by the member for Kaurna was in reference to the 24-hour period in section 17A; that is, it is an offence if a trespasser is asked to leave a premises and either fails to leave or trespasses again on those premises within 24 hours. The government consulted on the bill very broadly with primary production stakeholders and received no feedback seeking any change to the 24-hour period.

The sixth matter raised by the honourable member was when he asked why a section 17B offence for interfering with gates does not carry a potential term of imprisonment. The government considers that this offence is a relatively low-level offence as it is not necessary to establish any loss or damage, and it is therefore sufficient to increase the maximum fine and impose a significant expiation fee. The more serious offences carry terms of imprisonment, which have been increased in this bill. These other offences are the ones that are more likely to be charged where the interference with gates has led to the loss or damage to stock on the farm.

The seventh matter raised was when the honourable member asked about section 17C. Whilst there may be some overlap between this section and the aggravated farm trespass offence, the government does not wish to repeal section 17C and prefers to leave it available to be charged at the discretion of the prosecutor.

Finally, the honourable member is correct that the government does not intend to amend the hoon driving offence in section 17AA and the forcible entry offence in section 17D. It is not necessary to do so, as these offences remain available to be charged where the relevant conduct occurs on primary production premises. I am advised that those are all the matters that have been raised by the member, but no doubt if there are further issues, they can be dealt with in committee.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: I have a question in relation to consultation. At the briefing I asked about this and subsequently via email to your office as well. I was provided a list of people from whom consultation had been received. The email from the Attorney's office indicated that further information about what that consultation feedback was can be provided within the committee stage. Therefore, I am asking whether you can update the house on what feedback you have received from those stakeholders you consulted with.

The Hon. V.A. CHAPMAN: I am reviewing the email in which, I think, some 30 submissions were received in addition to comments on the YourSAy website, and I note that there is an indication here that we could provide summaries through the committee stage if required. I am not aware that that had been sought, so we do not have that information available.

Nevertheless, I am happy to read a list of these, and you can contact them if you wish: the National Farmers’ Federation; Primary Producers SA; the National Kangaroo Association; the Chief Executive, PIRSA; the Commissioner of Police; the Commercial Egg Farmers Association of SA; the Australian Meat Industry Council; the Australian Lot Feeders’ Association; the SA Dairyfarmers Association; the Acting Director of Public Prosecutions; The Royal Society for the Prevention of Cruelty to Animals South Australia Inc; and Pork SA.

There is also the Australian Chicken Growers’ Council; Livestock SA; the Minister for Environment and Water; the Law Society of South Australia; the Minister for Primary Industries and Regional Development; Grain Producers SA; YouSAy (and ad hoc responses, as I have indicated); Horse SA; Vivien Clayton; Neil Winkley, Forester Green Triangle (I think it is Forest Green Triangle, but anyway, it may be 'Forester') PF Olsen Limited Australia; Australian Pork Limited; the South Australian Wine Industry Association Inc; the Australian Forest Products Association; the Animal Justice Party SA; and, the Hon. Mark Parnell MLC.

Mr PICTON: Thank you, Attorney. I note that in future we have to flag that with your office to ask to get that detail.

The Hon. V.A. Chapman interjecting:

Mr PICTON: Yes, well, I did require it and asked for it in committee. The Attorney did touch on this during her summing-up, but does the Attorney have any statistics whatsoever or any information at all to clarify whether any of these offences have been used in recent times, that is, the past five years or so; if so, how many times and what were the outcomes?

The Hon. V.A. CHAPMAN: No, I do not have that data, as I indicated in reply, but I think I confirmed that the 23 protestors in the Strathalbyn meatworks sit-in were all given adult cautions.

Mr PICTON: Under which section?

The Hon. V.A. CHAPMAN: I do not have that in front of me, but there is an adult caution procedure, which means they are not prosecuted under any section. It is a policy that was introduced in 2017, so I assume the member is aware of how that operates; that is, the police can give an adult caution to someone not to do certain conduct on the basis that they are not charged.

Mr PICTON: Of course they get a caution, but my understanding is that they get a caution saying, 'Well, this is the caution in terms of the offence that we're concerned about.' You just do not get a caution saying, 'Well, we're just generally concerned about what you're up to.' I would have thought there would be particular cautions under sections 17, 17A or 17C as the case would be. If you do not have that information, perhaps you could provide it between the houses.

The Hon. V.A. CHAPMAN: I can make that inquiry, but I think it has been already provided on the material that was provided by the police, but if you did not have that information I will give you a quick summary of what there is. Section 17(1) is being on a premises for an unlawful purpose or without lawful excuse. It currently has a $2,500 fine or imprisonment for six months, and there are various iterations of that as it becomes more aggravated.

Section 17A(1) is trespassing on premises such as to interfere with the enjoyment of the premises by the occupier and failing to leave, etc.; that is the 24-hour leave. Section 17B relates to interference with gates on land on which animals are kept in the course of primary production. Section 17C relates to disturbance of farm animals while trespassing on land on which animals are kept in the course of primary production.

Mr Picton interjecting:

The Hon. V.A. CHAPMAN: No, I am just indicating that these are the ones that are referenced. Section 17D(1) relates to without lawful authority using force, threats or intimidation to enter land or premises to expel a person in possession. Section 17D(2) relates to entering upon land or premises unlawfully and retaining possession of the land or premises by force or in a manner that would render the use of force the only reasonably practicable means of recovering lawful possession of the land or premises. Section 18(2) relates to loitering on a public space, that is, a public road leading to farmland.

My understanding of the Strathalbyn incident is that there was a 10-hour entering of the property, occupation on the roof—it was a sit-in protest arrangement—and they were ultimately coaxed down by the police and left the property. Depending on what the actual factual situation was, I am assuming that the police could have referred to any number of those divisions.

Clause passed.

Clause 2.

Mr PICTON: Does the Attorney believe that if a similar situation was going to happen again—noting that she cited this as the example—following the commencement of this act, it would be taken further than an adult caution by police under these additional provisions that she is seeking to enact?

The Hon. V.A. CHAPMAN: I cannot say what the charges would be. That would be a matter for the police to assess in relation to the circumstances of any entering or trespassing that they found was in breach of any of these sections in the upgraded form, and it allows for an aggravated penalty application. Obviously, there is a significant change to the definition as to what can be done. Instead of just being able to be prosecuted for leaving a gate open, which could cause loss and damage if stock walked out, if someone was to interfere with a fence—that is, cut a fence line—or remove stock from a temporarily fenced arrangement, that is why the expansion of definition is there. Those matters would need to be assessed by the police, as they would normally do, in order for them to make the decision about whether there was any breach pursuant to these new provisions.

The adult cautioning has the capacity for them to do that and, again, they would have to make the assessment themselves on whether that would be recommended. I imagine that the nature of the trespass, the number trespassing and the cause of damage are all factors that would be relevant to the decision of the police in those circumstances, as they are the investigative and prosecuting bodies on those matters.

Mr PICTON: Following the commencement of this act, is the Attorney able to outline any conduct that is currently legal that would be illegal following the commencement of this act, except for the fact of the slight expansion of the definition of interference with gates and fences which, as we have discussed, is the one provision here that does not carry any serious penalties involving significant amounts of money or potential imprisonment?

The Hon. V.A. CHAPMAN: It is really the aggravated level of offences. The other reform that you would be aware of is that we have already in this parliament recently removed the $20,000 cap on compensation claims that are available through the Magistrates Court to be accessed for that purpose. The question of biosecurity, which is dealt with through a different set of laws, is a matter that is under review by the Minister for Primary Industries to deal with potential further offences and/or fines relating to contamination.

There are three things that I think the occupier and owner of the premises wants: firstly, to be free of interference with their lawful business and often home life and livelihood; secondly, to ensure that if that is breached that it is quickly attended to and that the police, of course, have the power to do that; and, thirdly, that there be sufficient deterrent in our legal system to ensure that if they are guilty they have a big disincentive not to come back. I think from memory we also made provision for on-the-spot fines on the gates. So, on some of the matters, there can be immediate action by on-the-spot fines.

Clause passed.

Clauses 3 and 4 passed.

Clause 5.

Mr PICTON: The Attorney did touch on this in her summing-up, but can expand and clarify, in that from this provision of section 17 it is clear that it is for an unlawful purpose that the penalty and the provision can be applied. It is not merely a fact of being on premises; you have to also demonstrate to the court that it is for an unlawful purpose for without lawful excuse. We did raise some questions about whether there is an interplay here with the Surveillance Devices Act, which does have a defence in the public interest.

I am wondering if the Attorney can outline whether she is confident that that would have no intersection here, in that that would not extend to protecting people against prosecution in relation to section 17, and are there any other provisions that would negate this fact? Also, what would be the likely unlawful purposes that would be sought to be used in the sorts of examples she has been discussing, such as in relation to the Strathalbyn case?

The Hon. V.A. CHAPMAN: I do not think that generally there is anything more helpful that I can add to the operation of how this is to apply and its intersection with the Surveillance Devices Act. If the member reads through what I have said in that regard, I hope that it would be clearer, if it is not now.

In relation to the question of 'for unlawful purposes', we frequently have legislation which gives a higher penalty if someone does something with the purpose of doing something else. For example, if you enter upon the property under our laws with the purpose of stealing property from it, then it has a higher penalty approach or regime that applies. One is not going in there and just walking through the property; it is to do something, and it may be to cause disturbance to animals, it may be to open the gate, it may be to throw bacon over into a pork pen. It can be all sorts of things that are for an unlawful purpose, and I think that is fairly self-evident.

Mr PICTON: It might be self-evident to the Attorney, but perhaps I can put it another way. If a person was to enter a primary production facility or property for the purpose of filming, does that fall foul of her proposed section 17?

The Hon. V.A. CHAPMAN: Again, I think if the member just reviews the matters I have outlined, it will be clear but, in short, I can say this. The advice we have is that somebody who is trespassing on a farm, taking a photograph of operations there, cannot rely on the provisions under the Surveillance Devices Act—it is a different legislation—where a public interest clause is a feature of that legislation in allowing there to be surveillance.

Here, we are talking about a trespass and whether there is a criminal offence that goes with that. I think it is fair to say that one should not read this legislation as a licence or permission to go onto a property and be filming activity and then try to argue that that is covered by or protected by exceptions under the Surveillance Devices Act. They might feel very let down if they did.

Mr PICTON: To clarify, does filming in itself constitute an unlawful purpose under this provision?

The Hon. V.A. CHAPMAN: If it is filming contrary to the Surveillance Devices Act, then it would be.

Clause passed.

Clause 6.

Mr PICTON: Is the Attorney aware of any example or any circumstance where there have been the sorts of animal rights protestors that the bill is designed to address, where essentially this clause would have effect? My understanding of this clause is that somebody trespasses, they are told to leave the property and they return within 24 hours.

I am not an expert in this area, but my presumption of the type of people we are talking about here are that they are probably trying to operate relatively covertly. It is not dissimilar to an irritant in a shopping centre, where this clause, as I understand it, is quite often used in terms of asking that person to leave Westfield Marion and the like. Also, this presumably does not stop that person from returning within 25 hours and undertaking the same trespass. Does the Attorney agree with that and therefore is this actually going to have quite limited use in terms of the type of conduct she is seeking to prohibit?

The Hon. V.A. CHAPMAN: We are just trying to clarify what provision we are at. Clause 6, which is an amendment to section 17A, already makes it an offence if the trespasser either fails to leave the premises forthwith or again trespasses on the premises within 24 hours; in either circumstance, they are guilty of an offence.

Clause passed.

Clause 7 passed.

Clause 8.

Mr PICTON: The last clause of the bill, clause 8, which as I said in my second reading actually might be the most significant change in this legislation, is in relation to the disturbance of farm animals. Currently, there is a relatively small penalty of $750, which in the context of a whole range of traffic offences is relatively small these days. That is not even expiation; it is the maximum penalty that could be applied. My presumption, even though the Attorney does not have any statistics available to her, is that it has probably not been used very often, but now it is going to be changed to $2,500 or imprisonment for six months. The definition is relatively broad, which therefore might mean that the sort of conduct that is seeking to be addressed here might actually now be used by section 17C, in my opinion, rather than other sections.

It depends upon the definition of 'causes harm to the animal' or 'loss, convenience or inconvenience' to the owner of the animals. My presumption is that this has not been used very often and that therefore to date there is probably very little case law interpretation as to these clauses. Can the Attorney-General outline what she and the government believe would be the appropriate definition and what is the test that is seeking to be met here in terms of causing harm to the animal? Do you have to physically cause harm to the animal, or is it just merely a presence that could be causing harm to the animal? What would be the loss or inconvenience to the owner of the animal?

The Hon. V.A. CHAPMAN: I will try to give an example. Because there are plenty of circumstances where the word 'harm' is in our legislation, the courts understand what we are talking about. It is broader than simply physical damage to the person or, in this case, a piece of livestock. I think the member for Finniss described to the parliament a circumstance where somebody entering a dairy can cause some stress to a dairy cow just by being an extra person in the perimeter. I think his description was that they are creatures of habit, and if they are used to just a bald-headed bloke being in the dairy and, suddenly, there are three people there with green hair or something, then they might be stressed. They might be a bit—

Members interjecting:

The Hon. V.A. CHAPMAN: Mr Hughes might go, yes, or they might be helping out Mr Basham. The bottom line is that it can cause some disturbance to the cattle. That is the understanding I have from the member, and he is the expert on dairy cows, so I have no reason to doubt that. If that causes them to be distressed and not produce milk or kick the bucket over or, worse still, kick the member for Finniss, then that may be a harm that is able to be established as a direct consequence of being disturbed in the dairy.

If they are able to satisfy that, on the balance of probability, to a court as an element of this breach, then I expect that will form part of the argument that the person should be successfully convicted of that. It may also have considerable weight in the determination of whether any compensation is paid. Here, we are talking about the level of penalty that is to apply as a result of trespassing and causing harm arising from the disturbance of farm animals.

I will check one thing in relation to the standard of proof. Is the standard of proof on the balance of probability for harm within the definition? Not quite sure. It is possible. Certainly, if it is not on the element of harm—that not being beyond reasonable doubt—usually 'beyond reasonable doubt' applies to the extra criminal offence itself, but some elements of it may only need to have the threshold of 'on the balance of probability'. That is what I am assuming it is. My adviser, brilliantly wise as she is, is not able to assist me on this particular point, but if it is anything different we will get it to you between the houses.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:44): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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