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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-04-28 Daily Xml
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Summary Offences (Trespass on Primary Production Premises) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 March 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:18): I rise today to very briefly speak to this bill. This bill has been around for a while and has been reinstated to the Notice Paper after not being dealt with at the end of last year. I indicate that Labor will be supporting this bill. In saying that, we recognise some of the potential shortcomings of this bill and that the government needs to be prepared, if there are unintended consequences, to come back and look at those again with future legislation.

The bill amends the Summary Offences Act 1953 and introduces offences for people unlawfully trespassing on and/or damaging or interfering with primary production premises. It also introduces standalone offences for interfering with things like gates and fences, as well as disturbing farm animals. As I said, if there are difficulties or unintended consequences with this bill, we would expect the government to address them here.

There are a number of amendments that have been filed. Some of the amendments the opposition have some sympathy with, identifying that there is not a defence provided for people entering primary production premises to expose abuse of animals. That is maybe something that, depending how this bill is used in practice, we might need to come back and re-examine. As always in the application of the law, we must strive to find a balance between protecting public and private interests, and if this bill does not do that in that respect, we indicate that we will be sympathetic to looking at amendments in the future.

The bill also introduces an aggregated offence for doing anything that involves or gives rise to a risk of the introduction or spread or increase of a disease or pest. Depending on how this bill is applied, that could be a very low barter pass. It may capture circumstances where there is even a marginal risk and the actual introduction of a pest or a disease does not need to occur. Depending how this law is applied, it is an area we flag that we may need to come back and look at.

Having said that, the opposition supports this government bill. We will not be supporting the amendments to the bill, even though we have some sympathy with some of them, but do indicate that we will expect some sympathy from the government if the application is not as intended and we need to come back and rectify it.

The Hon. C. BONAROS (16:21): I rise to speak on the Summary Offences (Trespass on Primary Production Premises) Amendment Bill 2020. As we know, the bill creates a new standalone aggravated farm trespass offence under section 17 of the Summary Offences Act 1953. It also increases the penalties across a number of related offences, including trespass on premises, interference with gates and disturbance of farm animals.

As members in this place well know, SA-Best is a strong advocate for South Australian primary producers and also animal protection, but we do not support the bill in the form that has been presented for a number of very sound reasons. First and foremost of these good reasons is that we simply do not need it. We are aware that the commonwealth government has called on states and territories to increase penalties for trespass on agricultural land to try to achieve uniform legislation in the states and territories in an area in which the commonwealth has no jurisdiction.

Some jurisdictions have complied with this request, but in South Australia we do not need to follow the directives of the commonwealth government like a flock of compliant sheep. I know there are many times that I have stood in this place and said that we should follow the lead of other jurisdictions that have followed the direction of the commonwealth government, but in this instance we do not think there are any grounds for this legislation.

Additional deterrents for something that is not evident here is the primary reason we do not support the bill in the form that has been presented. Achieving uniformity with something that is not a universal problem, and even worse is a serious imposition on the civil liberties of South Australians, is in my view not sufficient justification.

SAPOL confirms that primary production trespass of the type covered in the bill has not been a problem in South Australia and that policing and prosecuting primary production trespass under existing legislation has not been an issue either. Indeed, the minister's second reading explanation made no reference to increasing incidents or any incidents in South Australia suggesting the need for new legislation.

Media has not been reporting on it. Farmers and their representative groups have not been calling for it either and our South Australian animal protection agencies, such as the RSPCA, have always conducted themselves in an exemplary manner on the most meagre of budgets, reliant in large part on donations and antiquated legislation.

Farmers and fishers who raise and care for their stock for their livelihoods and careers are often the most dedicated and compassionate stewards of their animals. As SAPOL and our colleague the Hon. Mark Parnell has stated, SA-Best believes the current trespass laws and penalties are adequate and are relied upon. Magistrates apply them without controversy, and there is no community angst about inadequate deterrence.

I am personally thankful that the most recent shocking offences against animals interstate, such as those involving racehorses and earlier ones involving cruelty to battery hens, have been uncovered in recent years, including by means of RSPCA lawful and legal investigation and evidence gathering leading to criminal convictions. These cases have led to substantial changes in animal husbandry practices and community expectations about humane treatment of animals.

I believe the ACT has become the first territory in Australia to recognise animals as sentient beings; that is, that animals have intrinsic value and deserve to be treated with compassion and that people have a duty of care for the physical and mental welfare of animals. I do not doubt that there will come a day when we will be having that very same debate in our parliament in terms of similar legislation being passed here.

The Law Society of South Australia has expressed concern that this bill gives unprecedented protections to primary industry, resulting in ag-gag laws. The Law Society notes that ensuring the RSPCA can duly investigate compliance with animal welfare standards, which would involve increased funding to the RSPCA, would be a very effective measure, and we strongly support that position.

Giving the RSPCA power to inspect primary production premises without notice, as per the Hon. Mark Parnell's amendments, would go a long way towards making it completely unnecessary for anyone to unlawfully enter primary production premises, thus preventing the issue ever becoming a problem in this state.

I flag now that I will be moving an amendment to the bill, although it seems that the writing is on the wall in terms of the outcome of that amendment. That amendment is amendment No. 1 [Bonaros-1], and it deals with the second major defect in this bill. That is the imposition on a person who is found guilty of an aggravated offence—and remember, the bar is very low for an aggravated offence in this bill in that you only need more than one person present—and who is liable to pay compensation to a person for injury, loss or damage to the person resulting from the offence for which the defendant has been found guilty, unless exceptional circumstances exist.

We are not sure, under the current bill, what those exceptional circumstances might be. The amount of compensation will be such an amount as the court considers appropriate, having regard to any evidence before the court and to any representations made by the prosecution or defendant. We have no way of knowing what this amount might be. It could be millions; it could be less. As far as I know this is unprecedented in the common law of trespass, the Summary Offences Act and the Criminal Law Consolidation Act. The amount awarded against an offender could be enormous and could be ridiculously disproportionate to the offence. It would also be a huge burden for any defendant to obtain evidence that would be capable of challenging claims for compensation.

This clause of the bill is one that we see as completely disproportionate to the non-existent issue of primary production trespass in this jurisdiction, and my amendment seeks to deal with it by deleting the provision altogether. Thirdly, the penalties in the bill are similarly disproportionate, in our view, to the offence. Ten years in prison and a $10,000 fine for an aggravated offence are, with respect, in this instance over the top.

Finally, we agree with the Law Society of South Australia that the bill is too vague in regard to what constitutes an aggravated offence. For example, you can be liable for an action that gives rise to or involves or risks safety. These are very subjective and general terms, which, given the 10-year prison sentence that attaches to them, make it very dangerous and problematic legislation. While we will support the second reading of the bill, we indicate now for the record that we will not support the bill that has been presented before us. Despite the position of the opposition, I still intend to move forward with the amendment I have just outlined.

The Hon. F. PANGALLO (16:29): I rise to speak on the Summary Offences (Trespass on Primary Production Premises) Amendment Bill. We will support the second reading, but, like my colleague the Hon. Connie Bonaros and the Greens, there are aspects of this bill we have problems with. Without significant amendment, particularly one flagged by the Hon. Mark Parnell and also one by my colleague the Hon. Connie Bonaros, we will oppose it at the third reading.

I am unsure as to the genesis of this bill which, in my view, is also a veiled attack on media freedoms, public protests and the right for consumers to know what they are getting from the farm gate and how it was produced. Australia's agrisector injects a considerable $60 billion into the country's economy each year. South Australia's regions contribute almost $25 billion to the state's economy. Clearly, it is an extremely important supplier to the country's bottom line, particularly in these challenging times when COVID-19 coronavirus is sweeping the world.

The UN estimated last week that there could be a global famine affecting nearly 200 million people, so it is vital that we protect our farmers, but to do so should not come at the expense of our democratic rights and freedoms. A worrying trend is emerging of governments, both state and federal, which appear to be grabbing at totalitarian types of controls. I suspect the real reason for this bill is to control or dissuade particular groups in our community, or 'green-collared criminals' as the Prime Minister dubbed them last year, from causing disruption to farming activities.

While most of us abhor the extreme vigilantism that we saw last year and the shock tactics of vegan groups like Aussie Farms aimed at the meat industry, it also needs to be counterbalanced with our right to know as well as our right to choose what we consume and the welfare of animals. Australians care passionately about animal welfare and it has been borne out in their strong opposition to the live sheep trade as well as other issues that have arisen in recent years. We have also seen a surge in sales of products that promote themselves as being animal friendly like free-range eggs. Farmers, on the other hand, have complained that the unauthorised actions of these extreme groups threaten their privacy, safety and the biosecurity of their sites.

But let's be frank. What we have before us in this piece of legislation is a state extension of the Morrison government's so-called vegan terrorist laws, passed last year in a knee-jerk response to a series of rowdy national protests by extremists with Aussie Farms and the public outcry that followed. The Criminal Code Amendment (Agricultural Protection) Bill 2019 makes it a criminal offence to encourage or incite trespassing on farms and to unlawfully damage or destroy property or commit theft on agricultural land.

Agricultural land, in this case, refers to land used for primary production business. This includes chicken farms, piggeries and businesses operating as an abattoir or an animal saleyard. There is no mention of the sheep ships of shame, and I would imagine it would also include horse training facilities and, I trust, dog and cat breeders. However, surprisingly, there is no mention in the commonwealth laws of a farmer's personal safety. It is aimed squarely at the disruptors who would damage a business or its reputation. If it was intended to protect the interests of farmers, then this is already covered in the federal criminal code, namely the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act, which covers the use of a carriage service to distribute offensive material.

These new laws come with some stiff penalties. The first offence carries a maximum of 12 months' imprisonment, while the second offence may lead to up to five years' imprisonment. In the farm trespass bill before us there are six and 12-month terms of imprisonment for aggregated offences, fines and a provision for compensation for damages. However, the bill also specifies that offences would not apply to a news report which is in the public interest and is made by a person working in a professional capacity as a journalist, and I am referring to the commonwealth bill.

In effect, they are not going to shoot the messenger; yet, as I can attest, there are occasions when the messenger cannot avoid being involved in the trespass and collation of that material. I have had personal experience in this area as I worked with animal activist groups over the years to expose disturbing animal cruelty investigations for the Today Tonight program, that included piggeries, hen farms, rural properties used for cruel cock and dog fights, live sheep exports and appalling conditions in puppy farms.

I would like to single out the tremendous work done by Animals Australia and its director and chief investigator Lyn White, with whom I have had the pleasure to collaborate on stories. I also worked with the Hon. Mark Pearson, now a member of the New South Wales Legislative Council for the Animal Justice Party, when he was with Animal Liberation. They had cause to trespass to expose the horrors inside some South Australian piggeries, and their actions led to the successful prosecution of an Angle Vale battery hen producer in 1999.

Without media scrutiny, which involves the use of hidden cameras and occasionally having to access these properties with the help of whistleblowers, the cruel conduct of some of these unscrupulous operators would never have been revealed. Some more recent examples include the horrors on ships exporting live sheep to the Middle East, live baiting in the New South Wales greyhound industry, and thoroughbred and standard bred horses being sent to knackeries. Some have led to successful prosecution and a welcome clean-up of those industries.

The legislation before us today covers the gamut of primary production on land and the sea. What is not covered would be prescribed by regulation. However, when you consider the implications in the federal legislation, which would be mirrored in the proposed state legislation, it would be the activists, the whistleblowers, who gather that information or footage who will have far more to lose, and perhaps there could be a reluctance for them to come forward with information and video evidence.

I will note here the Hon. Mark Parnell's important public interest amendment, which we fully support. It will make it a defence if the conduct was for the purpose of exposing cruelty to animals. I do hold concerns that heavy-handed legislation is fast eroding our freedoms of expression and the civil right of protests, notwithstanding assurances from governments that they respect them. Therefore, citizens simply seeking more transparency are now more likely to be hit with criminal convictions.

There have been some appalling examples of overreach by governments; for instance, in response to anti-mining protests the now repealed New South Wales Enclosed Lands, Crimes and Law Enforcement Amendment (Interference) Bill of 2016 introduced the offence of hindering the working of equipment belonging to a mine, punishable by up to seven years gaol.

Last year, the New South Wales Crown Lands Management Regulation 2018 gave police officers the wideranging power to prevent individuals from taking part in any gathering, meeting or assembly. In 2015 the Border Force Act made it a crime to report on patients' medical conditions in offshore detention centres. Do we really need this kind of legislation when there are already statutes that adequately cover serious criminal trespass in this state?

There have been recent successful prosecutions already under our existing laws. In 2017, a Barossa Valley winemaker, Trevor Jones, received a three-year and seven-month suspended gaol term for trespassing on a rival company's property and tipping more than 27,000 litres of wine worth $300,000 down the drain.

You can only ever achieve successful prosecution when there is evidence, and this is usually supplied by members of the public, whistleblowers or groups with interest in exposing illegal or cruel activity. The RSPCA is hamstrung by limitations in what it can do with inspections under the Animal Welfare Act. We know they do a great job for animal welfare in the community, but, like the Hon. Mark Parnell, I have never been comfortable with having a privately run charity undertaking law enforcement and prosecutions. That should be the domain of our police and public prosecutors.

Even with some government financial support, the RSPCA's resources in mounting legal challenges are severely tested, and they often must make difficult choices as to which cases they can pursue and which they cannot. I agree with the Hon. Mark Parnell's view that if the Animal Welfare Act was amended to give the RSPCA the power to make unannounced audits after substantive tip-offs you would have more compliance and less reason for activists to break laws. With that, we support the second reading.

The Hon. R.I. LUCAS (Treasurer) (16:40): I thank honourable members for their contributions to the second reading and look forward to the committee stage of the debate.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

The CHAIR: At clause 5, the Hon. Mr Parnell and the Hon. Ms Bonaros both have amendments. The Hon. Mr Parnell, I believe yours was filed first; is that correct?

The Hon. M.C. PARNELL: Thank you, Mr Chairman. I have three amendments to clause 5 and, given the position of the opposition, I am not going to speak to them at great length. I did explain them in my second reading contribution. I might just say at this stage that I appreciate the support that SA-Best is showing for these amendments. The Greens' position is very similar. We will not be supporting the third reading if none of these amendments get up. I move:

Amendment No 1 [Parnell–1]—

Page 3, lines 24 to 32 [clause 5(1), inserted subsection (a2)(d)]—Delete paragraph (d) and substitute:

(d) causes—

(i) the introduction, spread or increase of a disease or pest; or

(ii) the contamination of any substance or thing; or

What this amendment seeks to do is clarify a provision of the bill that effectively makes every single uninvited farm visit an aggravated offence. People will say, 'That's not right. There are special circumstances before you can say an offence is aggravated.' The words in this bill are that:

…anything that—

(i) involves, or gives rise to a risk of—

(A) the introduction, spread or increase of a disease or pest;

is an aggravating offence. Every single uninvited farm visit is an aggravating offence. Whether you are attending a chicken farm or you are attending a wheat farm, any person who does not turn up in a full biohazard suit is potentially putting at risk those crops or those animals, and therefore, under the definition in this bill, that is an aggravating circumstance and the penalties for an aggravated offence will apply. It is a ridiculous provision.

The Greens' amendment quite simply seeks to change it so that the aggravation comes from actually introducing, spreading or increasing a disease or pest that is present, or contaminating something. That is an aggravating offence, but not simply the risk. I would urge members to support my amendment No. 1.

The Hon. R.I. LUCAS: The government opposes the bill—the amendment, I should say.

Members interjecting:

The Hon. R.I. LUCAS: It was a bit late for that, wasn't it?

Members interjecting:

The Hon. R.I. LUCAS: I am rolling over and joining the Greens, Mr Chairman; a blue-green algae! This amendment is opposed as it unduly narrows the aggravating circumstances of the new farm trespass offence. The government's paragraph (d), which would be replaced by this amendment, broadly deals with risks and effects of a biosecurity nature. It makes them one of the aggravated circumstances of the new farm trespass offence.

If the honourable member's amendment is passed, these particular aggravated circumstances would be narrowed to only those trespassers who have actually caused the undesirable biosecurity effects. This may be impossible to prove at the time of the prosecution for the offence, as these effects may not materialise for some time, perhaps years in the future. In those circumstances, the offenders would evade the full impact of the sentencing provisions that should apply to them.

To properly protect the primary production sector, the value of our industry and exports, and food safety, it is critical that this offence encompasses the introduction of a risk of biosecurity impacts in order to have the greatest deterrent effect on farm trespassers. The Attorney-General in the other place discussed the elements of risk in detail and explained that the prosecutor and the courts will not likely be looking for a mere theoretical and negligible risk of biosecurity impacts. In this regard, the honourable member can be reassured that the government's provision will operate properly.

Also, by removing the ability to expand the aggravated circumstances by regulation, as the honourable member's amendment proposes, this will prevent the government of the day quickly responding to risks of a biosecurity and other nature that are currently unanticipated. This will operate as a disservice to the primary production sector. I remind the honourable member that he will have the opportunity to object to any regulations that might be made in the future and move their disallowance at that time. The government's view is that this is hardly legislation by stealth.

The Hon. C. BONAROS: I rise once again to indicate for the record that we will be supporting the amendment.

The Hon. K.J. MAHER: I indicate at the start that we will not be supporting the amendments on this bill and, consequently, we will not be supporting this particular one.

Amendment negatived.

The Hon. M.C. PARNELL: I move:

Amendment No 2 [Parnell–1]—

Page 3, after line 36 [clause 5(1)]—

After inserted subsection (a2) insert:

(a3) It is a defence to a charge of an offence against subsection (a1) to prove that the conduct constituting the offence was for the purpose of identifying, mitigating or preventing ill treatment of an animal.

(a4) 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.

(a5) In connection with subsection (a4), primary production premises will be taken to be premises to which section 30 of the Animal Welfare Act 1985 applies.

This amendment incorporates three elements—two effective elements—but I will do them as a job lot. The first thing my amendment does is seek to introduce a public interest defence. In my second reading speech I made the point—in fact, both times this bill has been introduced—that there is hardly a single animal welfare reform that has not come out of activists highlighting, through videos, photos and another means, as a part of uninvited farm visits, the abhorrent circumstances that were undertaken on some of these facilities.

That is how we got change. That is why people buy free-range eggs, not because the farmers put their hands up and said, 'Jeez, we've been really cruel. Do you want to see this, guys? Does everyone want to have a look at how bad our conditions are?' No; brave people attended the premises with cameras rolling, showed it to the world, and the world now demands kinder production methods.

I think having a public interest defence is important because that is the reason most of these uninvited farm visits take place. If they can prove that what they were doing was in the public interest, especially in the cases I was involved with in the Supreme Court in South Australia and elsewhere and farmers were prosecuted on the back of these uninvited farm visits as a result of the information obtained, then why on earth should those brave people suffer prosecution under a bill like this when what they did was in the public interest and resulted in the criminal prosecution of farm cruelty? I think it is important to have the public interest defence in.

The second one, and this is why I am going to divide on this amendment, is for when Liberal and Labor members are next invited to an RSPCA function. The RSPCA has been calling for years for the ability to turn up to farms to undertake their statutory responsibilities to prevent animal cruelty. They do not have that power. They cannot just turn up unannounced. This amendment gives them that power.

I will be dividing on this one because I want to see Liberal and Labor members turn up to the RSPCA events and have to eyeball the inspectors, eyeball the RSPCA members, and tell them, 'Yes, we voted against giving you proper powers to enforce state law on behalf of the community.' That is my challenge. The third part of this amendment is effectively consequential on the second.

These are important improvements; without these improvements the Greens will not be supporting the bill at all. I urge members to get behind these important amendments: public interest defence and giving the RSPCA the powers they have asked for.

The Hon. R.I. LUCAS: With the first of Mr Parnell's amendments I was advised that the government merely opposed it; on this occasion I am advised that the government vehemently opposes this particular amendment. First, it totally undermines the intent of the government's bill to provide greater deterrence of trespassers on primary production land and, secondly, it effectively amends a provision in the Animal Welfare Act that has nothing to do with trespassers on primary production premises.

In an orderly society it is the responsibility of properly trained and authorised persons and bodies, with properly sanctioned and circumscribed statutory powers of compulsion, to investigate and prosecute contraventions of the law. In this state this is relevantly the police and also animal welfare inspectors. An orderly society does not empower and encourage vigilante activism. This is what the honourable member's first paragraph of this amendment would result in.

If passed, this paragraph would give animal activists, including those with a camera or other recording device, carte blanche to enter primary production premises that they merely think could be involved in the ill-treatment of an animal or even where they have no such prior suspicion. It would be a parliamentary green light to such conduct. The activists do not even have to prove there was actual ill-treatment, only that their purpose was to identify, mitigate or prevent it. Honourable members would be rightly concerned if such an amendment were to pass as it would pose no deterrent to property damage, personal injury or worse occurring on prime production premises.

I turn now to the remaining provisions of this amendment. Clearly, the Summary Offences Act is not an act in which matters dealing with the powers of inspectors under the Animal Welfare Act should appear. It is inappropriate for the honourable member to purport to amend the Animal Welfare Act in a de facto sense in a bill that deals solely with the criminal offence of trespass and in an act that has a different focus.

It appears that the honourable member considers that animal welfare inspectors should be able to use force to break into premises and vehicles at will, and not require either a warrant or a belief that urgent action is required to prevent or mitigate serious harm to an animal. If the honourable member is concerned about the current powers of inspectors under the Animal Welfare Act to inspect primary production premises it is, of course, open to him to introduce a bill to amend those provisions or to lobby an appropriate minister to introduce such amendments. It is for those reasons, I am advised, that the government vehemently opposes these amendments.

The Hon. C. BONAROS: I rise to indicate our strong support for the amendments of the Hon. Mark Parnell, mainly because I think that today, more than ever, the need for a public interest defence speaks for itself. For the reasons outlined by the Hon. Mark Parnell, we indicate that we will be supporting all three of the amendments, and we are pleased he will be dividing.

I want to refer to the comments made by the Leader of the Government a moment ago; I think they were specifically in relation to amendment No. 2. It is my understanding—and I stand to be corrected—that the defence the Hon. Mark Parnell seeks to incorporate into the bill would apply where somebody is able to prove that the conduct constituting the offence was for the purpose of identifying, mitigating or preventing ill-treatment of an animal.

I do not think that is something that ought to be 'vehemently opposed' by the government, and I ask the Leader of the Government to explain what part of that he thinks is over the top, where somebody has proved there has been access for the purpose of mitigating, identifying or preventing ill-treatment of an animal.

The Hon. R.I. LUCAS: I can only repeat the advice I have been provided with; that is, it is much broader than the Hon. Ms Bonaros has indicated. Let me quote again: if this is passed, this paragraph would give animal activists, including those with a camera or other recording device, carte blanche to enter primary production premises that they merely think could be involved in ill-treatment of an animal or where they even have no such prior suspicion. Certainly the advice provided to me, on behalf of the government, is much broader than the views being expressed by the Hon. Ms Bonaros.

The committee divided on the amendment:

Ayes 4

Noes 15

Majority 11

AYES
Bonaros, C. Franks, T.A. Pangallo, F.
Parnell, M.C. (teller)
NOES
Bourke, E.S. Centofanti, N.J. Dawkins, J.S.L.
Hanson, J.E. Hood, D.G.E. Hunter, I.K.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Maher, K.J. Ngo, T.T. Pnevmatikos, I.
Ridgway, D.W. Scriven, C.M. Wortley, R.P.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 4, lines 1 to 10 [clause 5(3)]—Delete subsection (3)

I have already spoken to it, but I will just go over it again. This amendment deals with what we see as the second major defect with this bill; that is, the imposition on a person who is found guilty of an aggravated offence. I remind honourable members again that the bar is very low for an aggravated offence in this bill. You only need more than one person present to be liable to pay compensation to a person for injury, loss or damage to the person resulting from the offence of which the defendant has been found guilty, unless exceptional circumstances exist.

There is no clarification around what those exceptional circumstances might be. The amount of compensation will be such an amount as the court considers appropriate, having regard to any evidence before the court and to the representations made by the prosecution or defendant. We have no way of knowing what those amounts might be. As I said during my second reading contribution, as far as I know this is unprecedented in the common law of trespass, the Summary Offences Act and the Criminal Law Consolidation Act. If I am wrong, I invite the Leader of the Government to correct me.

The amount awarded against an offender could be an enormous amount and could be ridiculously disproportionate to the offence itself. It would also be a huge burden for any defendant to obtain evidence that would be capable of challenging claims of compensation. It is for those reasons that I am seeking to delete subsection (3) of clause 5.

The Hon. R.I. LUCAS: The government opposes the amendment as it would remove the government's provisions for compensation to be awarded to a person who has suffered injury, loss or damage resulting from a trespass on primary production premises committed in aggravated circumstances.

It is correct that there is already a general compensation provision in section 124 of the Sentencing Act 2017, which leaves the question of compensation to the discretion of the sentencing court when a person has been found guilty of an offence. However, the government considers that the aggravated version of the new trespass offence is of such a serious nature that compensation should be awarded as a general rule and that it should not be left to the exercise of the court's discretion whether a person receives compensation for their losses.

The government's provision includes the safeguard that the defendant will not be liable to pay compensation if exceptional circumstances exist. This would be determined by the sentencing court, which will also have the benefit of hearing submissions on the question of compensation from both the prosecutor and the defendant.

The Hon. M.C. PARNELL: The Greens support this amendment and we thank the Hon. Connie Bonaros for putting it on the agenda. To put this into context, in the last battery hen case I was involved in, the chicken farmer was seeking an injunction to stop video footage that was obtained, according to this bill, in illegal circumstances. The argument of the chicken farmer went like this: 'If people saw the condition in which our chickens were kept, they would stop buying our products. If they stopped buying our products, we would lose money.' Under this bill, they would go for compensation as well.

Imagine if you were the person who had attended and got the footage that resulted in the previous federal government closing down the live export industry. You would be looking for the people who took the footage—the heroes who actually brought to public attention a gross mistreatment of animals. You would be suing them under this for compensation and throwing yourself on the mercy of the judge to say that there are exceptional circumstances and compensation should not be payable.

So this is really flawed and basically it is quite accurately described as ag-gag. The whole bill is designed to stop people being able to find out what is going on, and if they are successful in finding out what is going on, they will suffer the twin whammy of being prosecuted in aggravating circumstances, subject to massive fines or gaoled and they will be sued for the quite proper economic loss that often flows from disclosures such as this. So this is an important amendment. I am glad the member has moved it and the Greens will be supporting it.

The Hon. K.J. MAHER: As I indicated earlier, we will not be supporting this amendment. That does not mean we are not open to revisiting this if it comes to pass that the crossbenchers' worst fears occur.

The Hon. F. PANGALLO: I thank the Hon. Mark Parnell for supporting the Hon. Connie Bonaros's amendment. I find it incongruous what the government is proposing here. I think I have already outlined the freedoms that they are already trampling over and they continue to do so. If you have this for the farming sector, why are you not doing this for other areas, other industries, where you, in essence, just basically shut out the opportunity for whistleblowers to come and expose all sorts of awful practices that are going on in certain industries?

I am really amazed that Labor would sit there and support this as well, particularly given their own union background. When you consider that their mantra for years has always been to expose what is going wrong in industries and to stand up for their members and yet here they are just sitting there mute in support of the government. I am pretty disappointed in their attitude.

Again, as I said, this is trampling on our basic freedoms—our right to know and transparency and openness. I will say it as I said in my speech: I have strong concerns about the way some governments are going, particularly the conservative ones that are just trying to strangle our right to know.

The committee divided on the amendment:

Ayes 4

Noes 16

Majority 12

AYES
Bonaros, C. (teller) Franks, T.A. Pangallo, F.
Parnell, M.C.
NOES
Bourke, E.S. Centofanti, N.J. Dawkins, J.S.L.
Hanson, J.E. Hood, D.G.E. Hunter, I.K.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Maher, K.J. Ngo, T.T. Pnevmatikos, I.
Ridgway, D.W. Scriven, C.M. Wade, S.G.
Wortley, R.P.

Amendment thus negatived; clause passed.

Remaining clauses (6 to 8) and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:10): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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