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Legal and Constitutional Affairs Legislation Committee

BASHIR, Ms Gabrielle, Co-chair, National Criminal Law Committee, Law Council of Australia

MOLT, Dr Natasha, Director of Policy, Policy Division, Law Council of Australia

Evidence was taken via teleconference

CHAIR: Thank you for taking the time to give evidence today. Information about parliamentary privilege has been provided to you and is available on the website. The committee has received the Law Council's submission as submission No. 42. Do you wish to make any corrections to your submission before we begin?

Ms Bashir : No, thank you.

CHAIR: Do you have any comments to make on the capacity in which you appear?

Ms Bashir : I am also a director of the Law Council of Australia.

CHAIR: Would you like to make a brief opening statement before we go to questions?

Ms Bashir : Yes, thank you, I'll make an opening statement. As the committee would be aware, the Law Council is the peak national body representing the legal profession in Australia. We thank the committee for the opportunity to provide evidence to its inquiry into the Criminal Code Amendment (Agricultural Protection) Bill 2019.

The Law Council notes from the outset that trespassing, causing damage to other people's property and theft is unlawful, and acknowledges that such actions in relation to agricultural properties can cause significant harm. This includes the potential to cause contamination and to breach biosecurity protocols, not to mention the considerable distress that such actions place on members of our agricultural community.

Indeed, it is for good reason that all of the states and territories in Australia have legislated offences criminalising trespass, unlawful entry, criminal damage, theft and like conduct. As we note in our written submission, the common law and various statutes also criminalise the conduct of those who incite such offending through providing extensions of criminal responsibility to those who aid, abet, incite, assist or otherwise participate in and share the same purpose of committing a particular type of criminal offence, even though the roles might be different in carrying out the crime.

The Law Council of Australia does not believe it is necessary to enact this bill, as existing state and territory laws already criminalise such conduct. Should these existing laws require strengthening, this would be a matter for each state and territory government to address, as is occurring presently in New South Wales and Queensland, two jurisdictions that are reviewing existing penalties for trespassing on agricultural properties. We suggest that that state reaction is a more appropriate response than the Commonwealth relying on the telecommunications head of power to create offences of inciting a substantive offence that is already criminalised by the laws of each state and territory. We submit that the current legislation is unnecessary.

Another question that the Law Council of Australia asks is whether the bill achieves its stated aims, while ensuring legitimate rights and freedoms are not unduly compromised. In other words, does the bill get the balance right? In this context, the Law Council of Australia's primary concern for the proposed measures in their current form are: firstly, the potentially broad scope of the proposed measures that may have the unintended consequence of stifling legitimate public dialogue; secondly, the extent to which the proposed measures overlap with existing state and territory offences covering similar conduct; thirdly, the adequacy of the proposed exemptions for journalists and whistleblowers; and, finally, in relation to the severity of the penalties attached to the proposed offences, in some instances this exceeds the penalty applicable for the primary offence, or the substantive offence, which is not consistent with established principles of criminal law relating to accessorial liability. This serves to highlight why the provisions may be disproportionate to the aims of the bill. I can certainly come back and address irregularities that we see with the bill in that respect.

While our primary position is that we do not support the bill in its current form, to assist the committee we have made a number of recommendations that we feel would improve the bill should its progress be endorsed. Those recommendations can be found in our written submission before the committee. We thank you, again, for the opportunity to appear today. Subject to further matters, we're very happy to respond to any questions that you may have.

I will just go immediately to two matters. This is certainly not a criticism of the representative of the dairy farmers this morning, who is not a lawyer and was there representing very different interests. I will just clarify in relation to section 474.17(2) of the Criminal Code. There was a reference to that limiting the offence of using a carriage service to cause offence, harass or menace to being applicable to only emergency services workers. That's actually not correct. Whilst it certainly extends to protect emergency services workers, because of the words in subsection (2), which say 'without limiting', that means that it's not simply limited to those people. It is an offence with much broader application which also protects emergency services workers.

The second thing that we wanted to say was just to put the emphasis back onto what this offence relates to, which is incitement—that is, being an accessory through the transmission, publication or broadcasting of material. It is not trespass per se. It is not theft or the other unlawful materials as referred to in section 474.47 per se. In terms of incitement, there must be an intention formed in light of knowledge of the facts—that is, knowledge of the particular deed, the primary offence, contemplated; so knowledge of, for example, the trespass, the theft or the property damage. And there must be approval or assent of the relevant unlawful conduct and in fact incitement then for the other person to commit the deed. So knowledge of the facts is necessary. To put it another way, they must intend to bring about the forbidden result. It's not enough to act recklessly, and there must be a link in purpose.

Finally, as we've said, normally the penalty will be the same as or less than the penalty for the primary offence, not more. Thank you for that time. We're very happy to respond to questions.

CHAIR: Thank you, Ms Bashir. Senator McKim, do you want to go first?

Senator McKIM: Good morning, Dr Molt and Ms Bashir. I want to start at a very high level by noting that, in your submission, the Law Council—as you've said in your opening statement—does not support the bill in its current form. Just to be clear, the Law Council believes that, if the bill is unamended, it should be rejected by the Senate—is that right?

Ms Bashir : Yes. That's our primary position: that, in its current form—and I can go through some of the irregularities of the reasons why—we don't support it.

Senator McKIM: In terms of its consistency or otherwise with Australia's international human rights obligations, paragraph 65 of your submission says, rightly:

Limitations must be prescribed by legislation, necessary to achieve the desired purpose and proportionate …

Is it your argument that the limitations contained in this bill are not necessary to achieve the desired purpose?

Ms Bashir : It is our position, just in relation to the human rights obligations, that there do need to be some further specifications and amendments to the bill, particularly in relation to what may be seen as an effect of prohibiting broadcasting of matters relevant to public affairs and political discourse. We think that, if it's to pass, there needs to be some narrowing. I can be more specific in that respect if required. But, in our written submission, we've gone into some detail as to those matters that we see as necessary should the bill be progressed.

Senator McKIM: Is it the Law Council's view that this would likely be found unconstitutional for that reason if it ended up in the High Court?

Ms Bashir : We say that there are a number of questions that arise. In our written submission, these are highlighted particularly at paragraph 56 and onwards. We are concerned that the offences may impinge on the implied freedom of political communication, because the breadth of conduct captured by the proposed offences may overreach what is necessary for the effective operation of a system of representative and responsible government. We would draw into that what the High Court has already considered in the cases of Brown v Tasmania, and ABC v Lenah Game Meats. We've set out some relevant passages in our submission. But certainly it has been recognised that animal welfare is a legitimate area of public debate.

Just in relation to that, it's been recognised that, with animal welfare, there are legitimate matters of public debate nationally. There's a constitutional protection of freedom to disseminate information respecting government and political matters. That's as far back as Lange v ABC. In relation to animal welfare itself, that was referred to in ABC v Lenah Game Meats. Broadcasting is a primary means of bringing issues—such as, here, primary production or animal welfare—to the attention of the public. We know that broadcasting them is a way to do that and has traditionally been a catalyst for granting legislative and regulatory protections and safeguards. Indeed, in relation to the industry itself, it's in the interests of the industry and those conducting themselves lawfully within the industry that any unlawful or illegal conduct be exposed and necessary regulations brought in.

We just make those points—that there are some questions as to whether it is framed to advance the legitimate object in a matter that's compatible with the maintenance of a constitutionally prescribed system of representative and responsible government. We have, in our submission, pointed to the subsections that are related to the Criminal Code Amendment (Suicide Related Material Offences) Bill and how that was amended to bring in subsections 474.29A(3) and (4), which provided that if a carriage service was used to engage in either public discussion or advocacy of law reform then that was a defence. But what we would submit here is that there should be a—if I can take you to our written submission, just so that you have it in front of you. In paragraph 16 we say there would need to be some amendment along those lines, but attaching to the conduct that's here to be criminalised—that is, the transmission, making available, publishing or otherwise distributing the material. I hope that makes sense. I can go on, but I don't want to waste time.

Senator McKIM: Thank you, that makes sense—at least to me. Thanks for your responses so far. This is the last question from me for now. I just want to ask about the unintended consequence of stifling legitimate public conversation—I'm paraphrasing you there. You've given an example in paragraph 62 of your submission. You've used the example of an employee who, if this bill becomes law, may 'be too afraid to make public evidence of the use of poisonous chemicals on fruit produced at an orchard for fear of persecution'. Could you step the committee through why you think that kind of behaviour may be caught by the bill as it currently stands?

Ms Bashir : In relation to that kind of behaviour, it is our submission that the whistleblower protections simply aren't strong enough. We've made that submission I think more clearly in another section of our submission that refers to whistleblowers; this is back at paragraphs 40 through to 44. If one looks at footnote No. 22, which shows the recent amendments to the Corporations Act that have some whistleblower protections, it's our submission that there needs to be a much closer look into the whistleblower regime. I won't repeat what's already there in writing, but, as we've said at paragraph 42, the scope of the operation of the exception for whistleblowers is unclear, and it may well not extend to people such as employees or contractors who are whistleblowing within the industry.

Senator McKIM: Thank you.

Senator KIM CARR: Does the Law Council agree with the contention that's made in the Attorney-General Department's submission:

The Bill is not intended to create new forms of criminal conduct that are not already found in Australian law.

Ms Bashir : Well, it certainly creates a new offence. But in terms of incitement in relation to what we're calling the substantive or primary offences of trespass, theft and the like, you could already be prosecuted for that under the various state and territory primary offences and also the accessorial liability provisions in each state and territory.

But there are a number of irregularities, as I call them, if we look at this particular section. I will take you to the actual bill at 474.46 and just step you through some of the difficulties with this provision. With subsection (1)(a), one would need to read into that 'the offender intentionally transmits'. That's okay. Subsection (1)(b) says 'the offender does so using the carriage service'. We don't say anything about that; that's what makes it a Commonwealth offence, and that's how the Commonwealth seeks to legislate or pick it up under a Commonwealth head of power.

Then subsection (1)(c) says 'the offender does so with the intention of inciting another person to trespass on agricultural land'. I've been through what 'incitement' means, and it has to be particular to incitement, here, to the trespass. But, when we have here 'on agricultural land' and one goes back then to the definition of 'agricultural land', this offence may encounter the same kinds of problems that the Brown v Tasmania legislation encountered. I'm particularly referring to the difficulties there were said to be in relation to protesters and even law enforcement knowing where the boundaries were, so to speak. So we just draw that out. That is very broad.

Then the next subsection, which has an additional requirement of recklessness as to a circumstance or a result, becomes very, very broad. First of all, in subsection (1)(d)(i) it's an either-or, but subsection (1)(d)(ii) picks up 'any conduct', so that is not even limited to unlawful conduct. It's not limited to criminal conduct. Is it criminal conduct? Is it conduct at large? Is it benign conduct, which we've referred to in our submission? So then one starts to have all of the difficulties of whether it is necessary and proportionate that we have talked about, and that is even before one gets to 'could'—meaning 'might', not 'would' and not 'may'—'cause detriment'—and 'detriment' means any disadvantage, so again it is incredibly broad—'to a primary production business'. So we just draw that out in relation to that first section.

Then in relation to the second one, 474.47, in addition to the matters that I've just pointed out where they do occur within this subsection, we've got the penalty of imprisonment for five years, which, in our submission, may well contravene what are accepted principles of criminal law—that is, the incitement itself, or the accessorial conduct, which can only be proved with the actions attaching to those of the substantive offence, is penalised with a much greater penalty than the substantive offence itself. So we just draw out those irregularities.

We've got other things to say also about subsection (2)(b)—that is, 'person working in a professional capacity as a journalist'. This is too narrow, in our submission. We've already described why the whistleblowers section is too narrow, because it's limited to what is in the Corporations Act. Just jumping to the whistleblowers: if one looks at note 1, it says 'the Public Interest Disclosure Act 2013 provides that an individual'. It's actually a Commonwealth public official that that applies to, so that's for whistleblowers. But then, coming back to journalists, we have put in our submission that maybe that should be linked to the Evidence Act definition of 'journalist' but we also would support, if there were to be an amendment, what has been proposed by the media alliance, which is picking up section 122.5(6) of the Criminal Code, or modelling on that, but, rather than having it being a defence, specifying that it is not an offence if those matters are the case—that is, if the broadcast is done in the person's capacity as 'a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media'. It goes on to say:

(a) at that time, the person reasonably believed that engaging in that conduct was in the public interest … or

(b) the person:

   (i) was, at that time, a member of the administrative staff of an entity

And it goes on. So it actually protects administrative staff who are also doing things associated with the transmission.

Senator KIM CARR: Thank you. I follow that. The Scrutiny of Bills Committee, of which I'm a member, has raised some concerns about the reversal on the onus of proof in those provisions. Is it your concern that there is a reversal on the onus of proof in terms of the defence in those measures?

Ms Bashir : Our concern is that it should just be very clear that it's not an offence to do it, rather than, for example, the journalist being charged and them having to establish the defence.

Senator KIM CARR: I understand that, but that's the proposition as written: there is a reverse onus of proof. Would you concur with that proposition?

Ms Bashir : I just want to have a look at this. It says subsection (1) 'does not apply if the material relates to a news report or a current affairs report in the public interest and is made by a person'—

Senator KIM CARR: You have to demonstrate that?

Ms Bashir : That's right.

Senator KIM CARR: The state doesn't have to demonstrate that proposition. The offender, the person charged, has to demonstrate that. Is that correct?

Ms Bashir : It's not clear here. What it says in the note is that a defendant bears an evidential burden. What that would normally mean is this: on the evidential burden, one has to bring evidence or point to evidence to satisfy the matter in subsection (2). Once that has been raised, the prosecution would bear the onus of eliminating that beyond reasonable doubt. It doesn't, for example, mean that the defence bears an onus of proof. It has to discharge the evidential burden. In relation to proof beyond reasonable doubt, it still rests with the prosecution to eliminate what has been raised once the evidential burden has been discharged by a defendant.

Senator KIM CARR: Why is this justified with the exemptions categorised as 'offence-specific defences'?

Ms Bashir : It's just another real complexity in this bill. This isn't exactly answering your question, but, if there is substantial overlap with all of the various state offences, it could raise real questions about inconsistencies and whether the Commonwealth intends to cover the field. There are so many different ways in which there are irregularities, as I've called them, in terms of the drafting, as opposed to ordinary offences of incitement. But there are also real complexities in terms of the public interest, constitutional questions and whistleblowers.

Senator KIM CARR: The penalty here is said to be imprisonment for 12 months.

Ms Bashir : That's on the first offence. On the second offence, it's five years.

Senator KIM CARR: Yes. Why is that not regarded as a mandatory sentence?

Ms Bashir : What that's specifying is a maximum penalty. The way that this would be read at law is that that's the maximum that could be imposed. Maximum penalties are reserved for worst cases and often for repeat offenders. So it is a maximum, but our complaint is that it exceeds, in many cases, the maximum for the actual substantive offence itself. So, if you're transmitting it and thereby inciting trespass, you're liable to a higher maximum penalty than the people who are actually going on and performing the trespass, if that actually happens.

Senator KIM CARR: Yes, I accept that; I understand what you're saying there.

Ms Bashir : And they commit an offence, without anyone trespassing—

Senator KIM CARR: Your concern is, in relation to whistleblowing employees and various others engaged in this matter, they could be prosecuted. Does that include trade unionists?

Ms Bashir : It goes to any whistleblower who isn't covered under the Public Interest Disclosure Act 2013 or the Corporations Act.

Senator KIM CARR: But that would include trade unionists?

Ms Bashir : It really depends on the circumstances. It's very difficult to give a yes or no answer to that. It would really depend on whether or not they fall within the—if one looks at, say, note 2—

Senator KIM CARR: Sure. But it could include trade union activity.

Ms Bashir : It could include any whistleblowing activity that isn't caught by the Public Interest Disclosure Act or the Corporations Act protections for whistleblowers.

Senator KIM CARR: That include trade union activity.

Ms Bashir : They may be protected. It does depend—I'm sorry—on whether or not they're protected under the Corporations Act.

CHAIR: Senator Carr, we've got almost no time left for others.

Senator KIM CARR: I've got just one question. You're saying you believe this bill can be amended to have a definition of 'journalism' that would satisfy you?

Ms Bashir : We're saying that it could certainly be made much better. It would depend on whether all of the recommendations are taken on board. But, in terms of the journalism, we have noted the submissions for the media organisations that would seek to draw, in a defence, what is a defence under the Criminal Code at 122.5(6). We would say, rather than it being a defence, that would be turned around so that sections should prescribe that it's not an offence 'if' and so on and so forth. We're not saying that just that alone will save this bill, but it would certainly improve it. We would endorse that as opposed to what's in our written submission, which is the Evidence Act definition of 'journalist'.

CHAIR: You've noted in your submission that there is some overlap in the proposed offences of this bill and the accessorial liability for trespass in existing state offences. Is that right?

Ms Bashir : That's what we've put in our submission.

CHAIR: Have there been any High Court decisions challenging those state offences as unduly burdening the implied freedom of political communication?

Ms Bashir : I'm not personally aware of prosecution of such an offence and whether or not that's occurred. I'm not aware of that.

CHAIR: That's okay. Are you aware that section 474.48 in the proposed bill specifically reads down the provision so that it could not infringe the constitutional doctrine of the implied freedom of political communication?

Ms Bashir : We have addressed that, directly, in our written submission, in relation to the constitutional issues. If one looks at paragraph 55, we've directly addressed all of 474.48. Then we go on about our concerns in relation to that.

CHAIR: So you're concerned not that it might be unconstitutional but that it might unduly burden someone being prosecuted, in that they would need to engage with that question.

Ms Bashir : No, we've gone on then—I drew attention, in particular, to paragraph 56 and 59 to 60. They are concerns, in terms of impinging on the implied freedom of political communication, because of the breadth of conduct that might be captured. So we have raised concerns, in fact, in those paragraphs, and 59 and 60 also raise those further concerns.

CHAIR: But ultimately you're not aware of any cases, so far, where a challenge of this nature has been—in relation to the state offences—successful in the High Court?

Ms Bashir : Not in relation to those particular matters. But we would certainly draw your attention to those judgements we have referred to in this section of our submission—namely Brown and Tasmania, which was in relation to protesting and the forestry industry in Tasmania, and ABC and Lenah Game Meats, which was in relation to the broadcast of what was going on at a possum abattoir—because they really are quite relevant to the considerations before the committee.

CHAIR: You foreshadowed that some state governments are considering increasing penalties for what you would regard as the primary offence of trespass. What are the proposed penalties that are being considered in relation to those?

Ms Bashir : I would have to take that question on notice, sorry; I don't have that at my fingertips.

CHAIR: That's okay. When you consider that, could you also examine on notice whether the criticism you have made that says the proposed penalty of 12 months for these offences remains subject to your criticism that it is too high in circumstances of comparison to the primary offence when one considers the fact that the primary offence faces increases? Am I making myself clear there?

Ms Bashir : I think I understand what you are saying. On your second question, could I draw your attention to the tables that we put on at the back. We have looked at trespass/property damage. You will see, for example, that in New South Wales, at the moment, it is 50 penalty units for our equivalent of trespass.

CHAIR: I understand. But I'm more interested in the increased penalties that have been flagged by state governments.

Ms Bashir : We'll also give you some further information. For example, in South Australia, I am aware that an offence has been introduced which has a greater maximum penalty, and that is a different form of trespass. So we'll be able to supplement this table for you.

CHAIR: Thank you. Can I take you to the proposed section 474.46 of the bill. In subsection 1(c) the language is that 'the offender does so with the intention of inciting another person to trespass on agricultural land'. It uses the word 'intention'. Under Commonwealth criminal law, intention is the highest possible test of positive conduct.

Ms Bashir : No, knowledge is the highest fault element, but intention is certainly higher than recklessness. Indeed, for accessorial liability it has always been the case that knowledge, of which intention may be circumstantial proof of knowledge, must attach for accessorial liability, and that recklessness simply will not suffice.

CHAIR: So the prosecution has to prove that intention?

Ms Bashir : The prosecution has to prove the intention in relation to the particular trespass, yes. That is what I was trying to emphasise at the beginning.

CHAIR: Let's take the example of a person who is an employee and wishes to, in effect, blow the whistle on their employer's poor practices by providing information to a journalist. They couldn't, in that scenario, be guilty of this offence because to do so would not be able to be proven as being done with the intention of inciting another person to trespass. That's correct, isn't it?

Ms Bashir : The thing is: do you have to be charged, go to court and defend yourself in court? Or should this actually make clear that, as we say, in relation to purposes such as public discussion or law reform it is not an offence? We say it should be made very clear. That's why we have drawn attention today and in our submission to subsections 474.29A(3) and (4), which make specific provision that when a carriage service is used to engage in public discussion or advocacy of law reform—there in respect of euthanasia and suicide—no offence is committed. You're correct to say that, in those cases, the person doesn't intend for it to be used for the trespass. However, we say that it should be made very clear that it is not an offence. It should be clear because there's such a high public interest here, and I mean that from the perspective of the farmers—all of the alliances that gave evidence this morning and the ones that are coming to give evidence. There should be some clarity so that they understand the scope of the actual offence and so that law enforcement officers understand it as well. That's why we say it really does need that amendment.

CHAIR: Finally: the Commonwealth DPP, in assessing a brief to refer for prosecution a matter under this proposed offence, would need to be satisfied that there were reasonable prospects of success, so they would need to be satisfied that there was evidence that there had been an intention on the part of the person sharing the information to incite another to trespass. That's right, isn't it?

Ms Bashir : Yes. It would certainly assist there if it were made very clear in the provision what will not constitute an offence—to wit, what we say are those necessary whistleblower protections and the public purpose or the public interest. That public discussion and advocacy of law reform, if it were put into the bill, would also serve another important purpose, which would be to assist with the constitutionality.

CHAIR: Thank you.

Senator VAN: We've heard this morning, in previous evidence, the terrible effects of trespasses on farms et cetera, on both people and animals; they have been impacted quite heinously. We also heard Senator Carr speak about the strawberry bill, as he called it, and the lack of prosecutions that have occurred since that bill came into effect. Does the Law Council of Australia agree that one of the substantial purposes of laws is to have the effect of being a detriment to these offences occurring?

Ms Bashir : I think you mean a deterrent to offences occurring.

Senator VAN: Sorry—deterrent!

Ms Bashir : In relation to that, that's why we've sought to emphasise that this doesn't itself criminalise the primary offences of trespassing and the like, which are all caught under state and territory legislation. This is about the broadcasting of what's going on with the intention of inciting such a trespass, such a theft or the like. That's what's sought to be captured here.

Senator VAN: Exactly; that is the intention. A simple review of recent years shows that, despite the state laws that exist, there's little appetite to prosecute and that very low penalties have been imposed where it has been proved. Do you still believe that the state laws that currently exist are adequate?

Ms Bashir : I think what we're addressing here is whether or not this bill should be enacted. We do say that this does overlap with what could be prosecuted at state level. We're very concerned about inconsistencies raising a constitutional dimension as opposed to, I think, what you're referring to. In terms of whether or not the various state and territory penalties are high enough, that's really a matter for the state and territory governments; some of them are currently reviewing that. We will send up a note in that respect, certainly in relation to New South Wales and Queensland, as to what's being proposed in those bills.

Senator VAN: Yes, but it's not really answering the question. The question was more as to whether they are adequate at the moment. I would also ask: does the Law Council of Australia believe that it is an easier prospect and a timely one to correct all of the state laws to bring them up to the same level, and an adequate level, to provide the appropriate deterrent than it is to enact this law?

Ms Bashir : I think that probably the easiest way to respond is to say that the Law Council of Australia doesn't support this bill in its current form. The Law Council of Australia does believe that the state and territory offences and the accessorial liability that attaches to them are established and appropriate means that are necessary and proportionate in relation to the prosecution of accessorial liability for the substantive offences.

Senator VAN: But not the incitement component?

Ms Bashir : This will not change penalties that apply to the substantive offences.

Senator VAN: But that's not the intent of the act.

Ms Bashir : That would have to be cured at the state and territory levels.

Senator VAN: But that's not the intent of the act—

Ms Bashir : That's right.

Senator VAN: that we're holding this inquiry about. Thank you; nothing further.

Senator CHANDLER: Just quickly, I do have one quick question. We talked about one of your concerns being section 474.46(1)(c), which is about the definition of agricultural land. You raised concerns that this definition would raise similar issues to those in Brown v Tasmania. Could you just refresh my memory as to what the issue was around the issue of the definition of a forestry area in Brown v Tasmania?

Ms Bashir : I can refer you just to the specific sections. It's really around paragraph 73 through to paragraph 78. There was a vagueness to the definition. In that case, it was a different context. It was about whether the protester was in this particular surveyed forestry land or whether they weren't. The point that the court made was that it often would be very difficult for police officers and protesters also to correctly determine where the protester was situated and where the line around the area—there it was the business premises and business access area, but here it would be the agricultural land—is to be drawn. A protester wouldn't be in any better position to make such a determination.

Senator CHANDLER: That's what I thought, but I can't help but wonder about the definition of primary production business proposed in the bill. The quite lengthy list there of the types of premises that we're dealing with is a little more specific than the definition of a forestry area.

Ms Bashir : Yes, but that's only in relation to the result. In terms of the intention, in subsection (1)(c), that's to trespass on agricultural land. That's not actually limited to the primary production business. The primary production business only comes into the further circumstance or result, which is what recklessness attaches to in (d). It's in the breadth of (c), where they trespass on to agricultural land, that we draw the parallel, not with the primary production business.

Senator CHANDLER: Okay, thank you. I have no further questions.

CHAIR: Thank you very much, Ms Bashir and Dr Molt. We appreciate you making time to give evidence to us today. We will call on our next set of witnesses, who are from the Animal Defenders Office.