Summary Offences (Trespass on Primary Production Premises) Amendment Bill

Second Reading

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.