House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Criminal Code Amendment (Agricultural Protection) Bill 2019

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. This Bill is intended to strengthen the protections for Australian farmers against the conduct of those who incite trespass or other property offences on agricultural land.

3. The Bill would create two new offences in the Criminal Code. The first offence would apply where a person uses a carriage service to transmit, make available, publish or otherwise distribute material with the intention to incite another person to trespass on agricultural land, with a maximum penalty of 12 months imprisonment.

4. This offence would require that the offender is reckless as to whether the other person's trespass or related conduct would cause detriment to a primary production business being carried on on the land.

5. The second offence would apply when a person uses a carriage service to transmit material to incite unlawful damage, destruction or theft of property on agricultural land, with a maximum penalty of five years imprisonment.

Human rights implications

6. The Bill engages the following rights:

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Article 12(1) of the International Covenant on Economical Social and Cultural Rights (ICESCR)-the right to health

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Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR)-the right to presumption of innocence

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Article 17 of the ICCPR-the right to freedom from interference in privacy and correspondence

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Article 19(2) of the ICCPR-the right to freedom of expression

Right to Health

7. The right to health is contained in article 12 of the ICESCR. The right states that all people have the right to the "highest attainable standard of physical and mental health", and that State Parties should take measures necessary for the "improvement of all aspects of environmental and industrial hygiene".

8. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to health extends to "a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment." ^[1]

9. The Bill promotes the right to an adequate standard of living and the right to health by ensuring a safer food system within Australia. The Bill would strengthen protections against contamination of food production and breaches of biosecurity protocols. By ensuring that perpetrators can be appropriately punished, these measures will act as a strong deterrent to actors inciting behaviours that could cause the contamination of, or interfere with, food production and/or biosecurity protocols.

The Right to a Presumption of Innocence

10. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

11. The Bill engages this right by applying the presumption set out in section 475.1B of the Criminal Code to the new offences. The presumption in section 475.1B provides that if a physical element of the offence consists of a person using a carriage service to engage in particular conduct, and the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.

12. The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often evidence that a carriage service was used to engage in the criminal conduct is entirely circumstantial, consisting of evidence, for example, that the defendant's computer had chat logs or social media profile information saved on the hard drive, that the computer was connected to the internet, and that records show the computer accessed particular websites that suggest an association with the material saved on the hard drive.

13. The Bill relies on the Commonwealth's telecommunications power under the Australian Constitution. Therefore, the requirement in the offence that the relevant criminal conduct be engaged in using a carriage service is a jurisdictional requirement. A jurisdictional element of an offence is an element that does not relate to the substance of the offence, or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth than those that do not.

14. Given this purpose of the presumption, and that the offence is not unreasonable in the circumstances and maintains the rights of the defendant, the Bill does not violate the presumption of innocence.

The Right to Freedom from Interference in Privacy and Correspondence

15. Article 17 of the ICCPR establishes the right to freedom from interference in privacy and correspondence, specifically that "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence". The remit of this right is established in greater detail by General Comment No. 16 of the Human Rights Committee ^[2] . It states that such protections are "required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons".

16. The new offences proposed under Subdivision J would criminalise the use of a carriage service to transmit material with the intention that that material be used by another person to trespass (where the person is also reckless to potential detriment to a primary production business), damage property or commit theft on agricultural land. As people would be penalised for using a carriage service to transmit material with the intention of inciting trespass and other property offences, the scope of content that end-users are able to access and share would be necessarily reduced. This would engage the rights provided by article 17, as it would limit the nature of correspondence between Australian citizens, albeit only for a narrow and specific type of material and communication.

17. The Bill's objective is to reduce the malicious use of carriage services to encourage trespass, property damage or theft on private property. The use of a carriage service by perpetrators to communicate or share material with the intention that criminal activity occur, has the potential to contaminate food safety, breach biosecurity protocols and cause distress to members of the community. The extent to which the Bill would restrain the rights provided by article 17 is a necessary consequence of, and proportionate to, the pursuit of this legitimate objective.

18. The ready sharing of material intended to incite a crime is not the type of correspondence article 17 aims to protect. In its preamble, the ICCPR states that "the individual [has] duties to other individuals and to the community to which he belongs" and that "freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights". The unchecked transmission of materials intended to incite trespass, property damage and theft is incompatible with the goals of the ICCPR and all other international human rights instruments.

19. The legitimacy of the Bill's objective in the context of its interaction with article 17 is further supported by the general comments of the Human Rights Committee. Paragraph 3 of General Comment No. 16 states that "the term 'unlawful' means that no interference can take place except in cases envisaged by the law. Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant."

20. In this case, the laws proposed by the Bill are compatible with the tenets laid out by the preamble of the ICCPR. Criminalising the use of a carriage service to incite crimes against another's property promotes the objectives of "freedom from fear" and fosters conditions "whereby everyone may enjoy his civil and political rights". The rational connection between the limitation imposed by the Bill and its objective is established in the pursuit of the ICCPR's overarching goals.

21. Following the logic of the general comments from the Human Rights Committee and considering the nature of the behaviour, it is reasonable to conclude that indirectly restricting access to materials intended to incite is a reasonable, necessary and proportionate means to achieving a legitimate objective; deterring the use of a carriage service to incite the commission of a crime.

The Right to Freedom of Expression

22. Article 19(2) of the ICCPR provides that all people "shall have the right to freedom of expression". While the right to freedom of expression is of fundamental importance, it is not an absolute or unfettered right and therefore may be subject to certain restrictions.

23. Under article 19(3) of the ICCPR, freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation, necessary to achieve the desired purpose and proportionate to the need on which the limitation is predicated.

24. New sections 474.46 and 474.47, proposed in Schedule 1 to the Bill, would limit an individual's right to freedom of expression. These sections would criminalise the use of a carriage service to transmit material with the intention of inciting trespass or property damage, destruction or theft, on agricultural land.

25. The offences in the Bill are intended to protect the rights of Australian farmers and prevent harm to public order and public health from property offences incited by the use of a carriage service.

26. Incitement of property offences on agricultural land has the potential to affect the rights of Australian farmers to feel safe on their properties. It also risks harm to public health through the contamination of food, and the breach of biosecurity protocols. Criminalising the use of a carriage service to transmit materials, with the intention to incite trespass, damage property or commit theft on agricultural land is a reasonable and proportionate measure to uphold rights, and protect public health.

27. In light of the above, the Bill is consistent with the right to freedom of expression. To the extent that the Bill impacts this right, that limitation is reasonable, necessary and proportionate to the objective of protecting public health and the rights of Australian farmers.

Conclusion

28. The measures in the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcome of the Bill.