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Legal and Constitutional Affairs Legislation Committee

ANANIJEVSKI, Mr Branko, Director, Criminal Law Section, Attorney-General's Department

BLONG, Mr Nick, Assistant Secretary, Agricultural Policy Division, Department of Agriculture

BRAYSHAW, Ms Elizabeth, Assistant Secretary, Security and Criminal Justice Branch, Attorney-General's Department

DEININGER, Ms Rosemary, First Assistant Secretary, Agricultural Policy Division, Department of Agriculture

McMULLAN, Ms Kate, Acting Manager Strategic Engagement, Australian Federal Police

PLATZ, Ms Debbie, Assistant Commissioner National Manager Crime Operations, Australian Federal Police

WALTER, Mr Andrew, First Assistant Secretary, Integrity and Security Division, Attorney-General's Department

WARNES, Mr Andrew, Assistant Secretary, National Security Policy Branch, Department of Home Affairs


CHAIR: Welcome. Thank you for taking the time to give evidence today. Information about parliamentary privilege has been provided to you and is available from the secretariat. I remind senators and witnesses that the Senate has resolved that an officer of a department of the Commonwealth or of a state or territory shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. The committee has received submissions from the Department of Agriculture and the Attorney-General's Department as submission No. 20 and submission No. 72 respectively. To the Department of Agriculture and the Attorney-General's Department: do you wish to make any corrections or changes to your submissions?

Mr Walter : No.

Ms Deininger : No.

CHAIR: The committee has not received written submissions from the Department of Home Affairs or the Australian Federal Police. Would anybody like to make a brief opening statement before we go to questions?

Mr Walter : We might make just a short statement.

CHAIR: That would be great, Mr Walter.

Mr Walter : The department appreciates the opportunity to appear before the committee this afternoon. Having reviewed the submissions made on the Criminal Code Amendment (Agricultural Protection) Bill 2019, it may be useful if we provide some brief opening remarks to clarify the intention and scope of the bill. The bill creates new offences for people who intentionally incite via a carriage service other people to trespass, cause damage or steal property on agricultural land. Incitement is a separate and distinct offence from the primary offence which is the subject of the incitement.

The government introduced the bill to strengthen protections for farmers and provide consistent offences and penalties across Australia for those who use a carriage service to encourage others to trespass or commit property offences on agricultural land. The bill would operate to protect a range of producers, including meat, dairy, honey, fish, fruit, vegetable, crop, nut, wine and timber producers, operating on private land. These are all important industries, and unlawful trespass and damage on their private land has the potential to cause food contamination and biosecurity risks, as we've just heard. In addition, as many farmers live where they work, criminal trespass has the potential to make them and their families feel unsafe in their own homes.

As the Attorney-General noted in his second reading speech, the government has been concerned by recent incidents of trespass on agricultural properties and businesses. The government was also concerned that this conduct was enabled and encouraged by the sharing of personal information online, including personal details of farmers, their addresses and workplaces. These offences send a strong message that encouraging others to commit trespass or other property offences on agricultural land is not acceptable.

These offences do not introduce new forms of criminal conduct. There are already a range of state and territory offences that apply to this conduct when perpetrated via a carriage service or otherwise, attracting a range of penalties. However, these new offences and penalties will apply consistently across Australia, which is relevant given the cross-border nature of these forms of offending via carriage services such as the internet. The approach taken in this bill is also consistent with the purpose of part 10.6 of the Criminal Code, which provides a suite of telecommunications offences, many of which complement other state and territory offences. This part includes a saving provision intended to preserve the operation of state and territory laws.

The Attorney-General has raised these reforms with his state and territory counterparts in a meeting of the Council of Attorneys-General in June. Participants agreed on the importance of addressing trespass on farms and agricultural premises and undertook to consider options to strengthen trespass and related laws. Several jurisdictions have already implemented stronger measures. For example, in July this year, New South Wales announced the introduction of $1,000 on-the-spot trespassing fines and biosecurity fines of up to $220,000 for individuals or $440,000 for corporations. Other states and territories have established inquiries into the effectiveness of their trespass laws and announced amendments to their trespass and biosecurity laws.

There has been a range of concerns raised during this hearing and in submissions about the application of the provisions to journalists and whistleblowers. Intentional incitement is a high threshold. It will not apply to accidental or inadvertent communications, as some have suggested. A person must mean for another to unlawfully enter agricultural land or engage in the other unlawful conduct. The bill includes express exemptions to ensure journalists and whistleblowers who are lawfully reporting on or disclosing animal cruelty or other activity on agricultural land are not captured. We welcome any questions the committee has.

CHAIR: Are there any other opening statements? Thanks for the clarification on the effect on journalists, Mr Walter.

Senator KIM CARR: The home affairs department and the AFP chose not to make submissions. Can you indicate why?

Mr Warnes : From the Department of Home Affairs, I can say that, while the minister has policy responsibility for the offences in the code, the Attorney-General's Department has led the development of these offences and consulted closely, so we were happy with the Attorney-General's Department providing a submission.

Senator KIM CARR: And the AFP?

Ms Platz : That's the same.

Senator KIM CARR: I notice that the Attorney-General's Department's submission is very limited—two pages. Agriculture's is even more limited, with 1½ pages. You could hardly call it an extensive contribution. Could I ask either of the officers: why is that?

Mr Warnes : Obviously the bill was prepared and explanatory materials were provided with the legislation. The Attorney explained the position in his second reading speech. What we tried to address in our submission were some of those issues we felt had not been fully addressed in that documentation.

Senator KIM CARR: What's the reason for the somewhat cursory submission that you've presented to the committee? What's the reason for that?

Ms De i ninger : In relation to the submission from the Department of Agriculture, we sought to provide additional detail in relation to biosecurity and other matters that might not have been covered in the explanatory and other materials that were provided through the introduction in the second reading speech.

Senator KIM CARR: It wasn't because you had to rush it through, was it?

Ms De i ninger : I believe we met the deadline imposed by the committee for the submission process.

Senator KIM CARR: There's no question about not having enough time to produce a substantive response?

Ms De i ninger : I'd have to check how long the department had for preparing submissions, but certainly we always seek to provide our advice on time to assist the committee in its deliberations.

CHAIR: For what it's worth, I don't think we moved the date forward from the usual process.

Senator KIM CARR: Thank you. The Attorney-General's Department is the coordinating department, I take it. Is that right—you're the lead agency?

Mr Walter : The Attorney-General's Department took the lead on the development of this legislation; correct.

Senator KIM CARR: So you would have coordinated the response from the Commonwealth departments?

Mr Walter : We worked with other departments in development of the legislation; that's correct.

Senator KIM CARR: Did you provide a list and analysis of all state and territory laws that criminalise trespass and damage to property, including trespass on and damage to agricultural property or inciting others to do so?

Mr Walter : Sorry, what was the question?

Senator KIM CARR: Did you provide, in preparation for this legislation, a list of all state and territory laws that criminalised trespass and damage to property, including trespass upon or damage to agricultural property or inciting others to do so?

Mr Walter : As part of our preparation of the legislation, we examined the existing state and territory legislation. That was also necessary in the lead-up to the Council of Attorneys-General discussion of the topic. We would have to check whether we provided it to other departments—which I think in this case would mainly be the Department of Home Affairs—in terms of development of the legislation.

Senator KIM CARR: Would you provide the committee with a list of all state and territory laws that criminalise trespass and damage to property, including trespass upon and damage to agricultural property or inciting others to do so?

Mr Walter : We'll take that on notice. Just to note, Senator: in some instances, states and territories rely on the common law offence of trespass as well.

Senator KIM CARR: Yes, but you'd be able to detail that, won't you, because you would have provided that information already?

Mr Walter : We can indicate when that's the case.

Senator KIM CARR: If you could provide that it would be important for our report to have that advice; thank you. Who did you consult about the exposure draft of the legislation?

Mr Walter : There wasn't a formal exposure draft of the legislation, if you mean a draft of the legislation being released to the public at large and being consulted on. However, we can provide, again on notice, those other areas that we spoke to during the drafting process, if that's what you're trying to get at.

Senator KIM CARR: It's not uncommon to provide exposure drafts of legislation, is it?

Mr Walter : It depends. It is a little less common in the criminal justice space than in some other spaces. It depends on the complexity, the size of the bill, whether it's novel et cetera. There's a whole range of factors.

Senator KIM CARR: Who did you consult with?

Mr Anan i jevski : We consulted with the Department of Home Affairs, the Australian Federal Police, the Department of Agriculture, the Commonwealth Director of Public Prosecutions—

Mr Walter : And, obviously, the Office of Parliamentary Counsel.

Mr Anani jevski : Yes.

Senator KIM CARR: Which stakeholders? You consulted with the Public Service, and that's good to hear. Who else did you consult with?

Mr Walter : The government took the proposal to establish this legislation as an election commitment, and we acted on the instructions of the government to develop the legislation in response to that commitment that they took to the election.

Senator KIM CARR: So, because it's an election commitment, you don't have to consult?

Mr Walter : Whether the government wishes to consult as part of its process is a matter for the government, and we acted upon the instructions of the government.

Senator KIM CARR: So you were told by the government to produce the legislation because it's an election commitment. That's a perfectly reasonable explanation. I just want to be clear about this. So the Attorney-General's Department has not consulted with stakeholders; you relied on the government's instruction?

Ms Deininger : I might add to that. The Department of Agriculture, as part of its normal course of business, consults with a range of stakeholders from the farming sector and, in those regular consultations that are part of our normal course of business, this a matter that was discussed as part of those consultations.

Senator KIM CARR: So this was announced by the Liberal Party as an election commitment, and you consulted with the stakeholders when?

Ms Deininger : Sorry; I beg your pardon, I—

Senator KIM CARR: I will repeat the question. This was announced by the Liberal Party as an election commitment and you've said you then consulted with the various stakeholders. I'd like to know when.

Ms Deininger : I don't have the dates of when the discussions happened.

Senator KIM CARR: Could you please take that on notice? When did you consult with the stakeholders after the announcement of this initiative? We've heard from many stakeholders that this legislation would need to be widened. In fact, we've had submissions put to us now by, for example, the resources sector, by the forestry sector—in fact, some farming groups say that we should include transport in the legislation—and by the aquaculture sector. A number of groups have actually said that the primary production business is too narrowly defined in this bill. Mr Walter, how do you respond to that suggestion?

Mr Walter : There are a couple of answers to that. To start with your last example, aquaculture is covered by the bill.

Senator KIM CARR: What about trucking, though? The reference was to trucking.

Mr Walter : Okay, thank you. There are a number of elements to this. Firstly, the government was, as you appreciate, responding to a series of incidents that happened predominantly earlier this year, where there was increasing concern about trespass and other activities taking place on agricultural land. The government wanted to respond to this and to dissuade people from undertaking those activities. In doing so, it was careful to confine the application of these two offences to the mischief in question, which is the commission of these offences on private property. As soon as you step out of that realm and move into incidents that might occur in public spaces, there is a range of other issues and complications that come into the picture. That wasn't the government's primary concern at that time. It wanted to focus and be targeted on how it was responding to the issue that was at hand.

Senator KIM CARR: It's not the question of public versus private land. I'm just wondering: in the consultation process, did this issue come up about, for instance, fishing or aquaculture—the issues about protection for aquacultural facilities?

Ms Deininger : My understanding is that aquaculture is covered by the bill.

Senator KIM CARR: That's not what the seafood industry say to us. They say:

… what protections are offered to fish processing facilities operating at sea, and to what extent do the proposed protections for terrestrial agriculture extend to wild-catch operations …

Did that come up in your consultations?

Ms Deininger : I'm not aware that there were specific consultations on that point.

Senator KIM CARR: I see. But you did consult with the seafood industry, did you?

Ms Deininger : I'm happy to take that on notice.

Senator KIM CARR: If you would, please.

Mr Walter : Can I just clarify: if you go to the definition of 'primary production business' in the bill, it does apply in relation to agricultural land which is used for 'a business of aquaculture'. It also applies to—

Senator KIM CARR: Some aquaculture—not all—and some fish processing.

Mr Walter : 'A business of aquaculture' is in paragraph (f). Then in addition you have paragraph (k), which says 'a business of operating a fish processing facility'. So you've got both of those in that.

Senator KIM CARR: I see. So you say that the seafood industry's concerns are not valid?

Mr Walter : I'd have to look more closely at the question of vessels. I think there are going to be some issues there about where they are at particular times.

Senator KIM CARR: That's the point, though. I'm just wondering how adequate the consultations have been. We've had representations from agricultural groups that suggest that they're not covered adequately. We've had, obviously, representations from the forestry industry. You're saying that they're included if they undertake forestry on private land but not public land.

Mr Walter : Again, in the legislation the intention of the government was to protect activities that were taking place on private land, and that is quite clear in relation to forestry in paragraph (q) of that definition.

Senator KIM CARR: Yes, but not forestry on public land?

Mr Walter : Correct.

Senator KIM CARR: That's right. What about scientific facilities—agricultural research facilities? Where are they covered in the legislation?

Ms Deininger : I believe there was some discussion earlier in the day in relation to this point. Increasingly, for example, we know that the R&D corporations, the research and development corporations, undertake research and development on private property, on farms which are ongoing operations. So, because that is on private property, we would expect that to be covered in the bill. I understand that you've sought advice from some other attendees today in relation to whether they consider—

Senator KIM CARR: I have, but you've got advice on that too, surely. You've consulted already. The Attorney-General's Department would be able to specify already—I wouldn't need to ask you again, surely—which clauses of the bill go to agricultural research stations.

Mr Walter : Again, the intention of the government was to focus on primary production facilities, again on private land.

Senator KIM CARR: Fine, yes. Primary production does not include just farms, does it?

Mr Walter : No, it doesn't, and that's why we have that extensive definition.

Senator KIM CARR: That's right. Does it include scientific research facilities?

Mr Walter : No.

Senator KIM CARR: Why not?

Mr Walter : Again, it was the government's intention to focus on primary production. That was where it felt the mischief was, that people were committing offences on these farms—

Senator KIM CARR: The raid on the CSIRO facilities here in Canberra a few years ago surely demonstrated that there is a risk to agricultural facilities. We've heard from evidence that internationally there's been considerable concern raised about scientific facilities. Why isn't that included in this bill?

Mr Walter : I understand the point you're making. However, the government's policy was that it wanted to have a set of narrow offences that dealt with particular issues of concern, and the bill has been narrowly focused on those particular issues.

Senator KIM CARR: I see. All right. It's narrowly focused. It does include abattoirs, doesn't it?

Mr Walter : It includes abattoirs, yes.

Senator KIM CARR: Abattoirs in urban settings?

Mr Walter : It would include an abattoir in an urban setting; yes, that's correct.

Senator KIM CARR: But not forestry?

Mr Walter : It includes forestry on private land.

Senator KIM CARR: On private land, but not—

Mr Walter : If it was in a state park, for example, no.

Senator KIM CARR: I see. But if it's an abattoir on public land it wouldn't be included?

Mr Walter : I'm not aware that there are any abattoirs—

Senator KIM CARR: There are.

Mr Walter : There are?

Senator KIM CARR: There are council abattoirs still in this country.

Mr Walter : Sorry, that's actually beside the point. The forestry element—sorry, my answer was beside the point. My question to you was beside the point, my apologies.

Senator KIM CARR: Thank you.

Mr Walter : I'm not suggesting your question is beside the point.

Senator KIM CARR: I'm sure you wouldn't.

Mr Walter : An abattoir could be on public land or private land.

Senator KIM CARR: That's right.

Mr Walter : But the act does not distinguish—

Senator KIM CARR: That's right. So, in the case of an abattoir, it doesn't matter who owns the land.

Mr Walter : Correct.

Senator KIM CARR: But it does in regard to a forest?

Mr Walter : Yes.

Senator KIM CARR: Why?

Mr Walter : There are essentially a range of issues with forestry occurring on public land that do not apply in this instance.

Senator KIM CARR: You're going to have to explain that to me, because I'm a bit slow when it comes to these distinctions. Why is it that there's one set of rules for forestry and another set of rules for meat processing?

Mr Walter : What it comes down to is whether these offences could actually apply in the instance of public land. Can you trespass on public land is the fundamental question.

Senator KIM CARR: But you can if it's an abattoir.

Mr Walter : In the abattoir case you've got a lease over the land in relation to the property, or a licence for the purposes of carrying out—

Senator KIM CARR: If it's a publicly owned forest, you've still got a lease over it. You've got a licence to operate. You've got people who breach those licences. People are prosecuted for being in that catchment illegally. So why don't these provisions apply to forestry?

Mr Walter : Once again I think it's partly about the government's focus for the legislation, which was primarily directed at protecting farmers and people engaged in mainstream agricultural activities.

Senator KIM CARR: Could it be because you rushed it? Could it be because you haven't thought this stuff through? Maybe it's because the consultation process wasn't very extensive? Maybe it's because it was an election commitment that you never thought you'd actually have to implement? Is that why your submissions are so limited? Maybe it's because you haven't thought this through? Is that possible? Is it possible that this is rushed legislation and that there wasn't proper consideration of the implications?

Mr Walter : I can give you a time frame for how long these proposals have been around and the government's consideration of those issues. The government's instructions that we were acting on—the government's concern was to direct its attention to a narrow set of behaviours, and that's what this bill does.

Senator KIM CARR: All right. How does the Attorney-General's Department respond to the concerns raised by the Scrutiny of Bills Committee, the Joint Committee on Human Rights, the Law Council of Australia and media organisations—all of which are presented here—that whistleblower protections are inadequate and protections for journalists are too narrow?

Mr Walter : In both instances, obviously, the bill includes specific provisions that deal with both journalists and whistleblowers. In relation to whistleblowers, we are talking about subsection (3) of the two offences. If the person cannot be subject to any criminal or civil liability for the conduct, then obviously the evidence does not apply to them. In the case of a private sector or public sector whistleblower, if they have operated in accordance with either the Corporations Act or the Public Interest Disclosure Act those protections kick in under those two pieces of legislation and then the defence would be activated in terms of the disclosures made in accordance with either of those two pieces of legislation. With respect to journalists, subsection (2) of the offences is the relevant provision here. This is modelled on the most recent protection for journalists provisions that have been passed by the parliament, which was in the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill. In our view, these provisions do provide adequate protection for journalists. They are not the same as some of the other provisions or approaches that we have seen in submissions. However, we think they are more appropriate for the legislation in question because they are tailored to the offences that are before you.

Senator KIM CARR: On the onus of specific defences, which is a matter that the Scrutiny of Bills Committee is particularly concerned about, why is it necessary to pursue the categorisation as 'onus of specific defences'?

Mr Walter : It's important to note that what the legislation is doing here is saying that there is a reversal of the evidential burden. In line with the general principles of criminal responsibility in chapter 2 of the Criminal Code, the two issues that we are trying to get at—the matters in question are things that are of peculiar or particular knowledge that the defendant might have. The second point to make is that all you need to do to discharge an evidential burden is adduce or point to evidence that says that the defence could be in play—and then the evidence flips back. So it is not a legal burden—you do not have to prove it beyond reasonable doubt or on the balance of probabilities—it is just an evidential burden. And it is enough for you to point to evidence to say, 'Yes, I am a journalist. I have acted in the public interest,' and then the burden flips back onto the prosecution. And it is because those matters are going to be peculiarly in the knowledge of the journalist in that question.

Senator KIM CARR: Who commissioned the Futureye report?

Mr Blong : That report was commissioned by this department. It was perhaps in the first quarter of last year—some time ago.

Senator KIM CARR: So it is only a year old.

Mr Blong : I think it was published around April or May last year.

Senator KIM CARR: In Commonwealth parliamentary terms and in Commonwealth bureaucratic terms it is quite a recent report. How much did it cost?

Mr Blong : I'm afraid I'll have to take that on notice.

Senator KIM CARR: Would you agree that the report's findings were alarming?

Ms Deininger : We don't have a copy of the report to hand, so we're not really in a position to comment on the individual recommendations at this committee hearing.

Senator KIM CARR: Would you like to take that on notice? I am specifically interested to know whether the report's findings fed into the consideration of this legislation.

Ms Deininger : I'm happy to take that on notice.

Senator KIM CARR: The Australian Veterinary Association and the RSPCA have said that there needs to be a return of national leadership in animal welfare and the re-establishment of the Australian Animal Welfare Strategy. Why has that committee not been re-established?

Ms Deininger : As has been discussed, the states and territories have responsibility for enforcement of the various animal cruelty and animal welfare standards. We work through the Agriculture Ministers' Forum to work with the states and industry on those matters.

Senator KIM CARR: If that's the case—I'll ask any of your officers to respond to this—given it's the states that are responsible and given how important whistleblowers have been, given the failure of the regulatory regime on so many occasions, can you foresee a situation where the sorts of practices uncovered by the Woodward royal commission into the meat industry could ever be repeated, if we saw a circumstance where whistleblowers' capacity to communicate with the public were curtailed, which people have alleged would come about as a result of this legislation?

Mr Walter : I think the critical point here is to say the legislation doesn't curtail the ability of a whistleblower to communicate under whistleblower protection regimes. It doesn't, in any way, stop them from taking lawful steps under those regimes. Indeed, I think you said in response to an earlier witness, the critical element of these offences is they're incitement offences. Even when putting pretty atrocious-looking images online and documenting certain practices, you've still got to get to a high standard to get to incitement. There's got to be an intention here.

Senator KIM CARR: So what's the point of this legislation?

Mr Walter : The intention here is exactly that. When you are actively going out and inciting people to trespass on people's land or cause criminal damage on people's land, on those engaged in agriculture business, it's to provide that extra level of protection and make it very clear that there are national standards on that.

Senator KIM CARR: This question is to the Federal Police. We were advised earlier it would require the Federal Police to enforce this legislation, given the current regulatory regime is not being enforced through the states and territories. How many officers would you require to do that?

Ms Platz : I think it's important to note that this proposed legislation complements the state and territory legislation. Our state and territory partners would, invariably, use their legislation prior to Commonwealth legislation. However, as I mentioned, this would complement their own legislation. Therefore, they could use these Commonwealth powers or legislation themselves.

We in the AFP, of course, have the responsibility of operationalising the legislation that the parliament brings into being. When we do that, we have a case categorisation prioritisation model, which then determines whether or not we investigate a case, and there are a number of factors that go into that model. I wouldn't say that we would estimate how many police we would need to do this, because this would form part of our overriding work and priorities.

Senator KIM CARR: Can I see a budget bid emerging as a result of this legislation?

Ms Platz : In relation to this legislation, we are not asking for extra resources.

Senator KIM CARR: None? You require none?

CHAIR: Senator Carr, there's 10 minutes.

Ms Platz : We've been given—

Senator KIM CARR: That's it. I'm done. Thanks very much.

CHAIR: Sorry, I cut you off, Ms Platz. If you needed to finish, I beg your pardon.

Ms Platz : I was just going to say that we have been given a large budget for our resources, with a number of election commitments, over the past 12 months. We would be able to use that in order to investigate these cases on an as-needs basis.

CHAIR: Thank you.

Senator CHANDLER: I have a couple of questions for the Attorney-General's Department. This is just to clear up some of the legal issues we discussed today. We had quite a lengthy conversation with Australia's Right to Know about the intent issue, and I think Senator Carr was touching on it. I want to confirm with you that the intention to incite is quite a high standard of responsibility required to make out this charge.

Mr Walter : That's correct. Under chapter 2 of the Criminal Code, which sets out the general principles of criminal responsibility, intention is the highest fault element, in terms of being the most difficult to prove.

Senator CHANDLER: Yes, and that's higher than the fault element of a defamation tort, for example?

Mr Walter : That's a completely different space, in the sense that—

Senator CHANDLER: It is, isn't it.

Mr Walter : a defamation tort is a civil action, not a criminal action, so you wouldn't be talking about fault elements in that. The burden of proof in a criminal matter, of course, is different to a civil matter, and the higher standard of criminal proof applies to these offences.

Senator CHANDLER: It is. One of the concerns of Australia's Right to Know was—there has been a recent case, I understand from their submission, in the New South Wales Supreme Court where a media organisation has been found liable for defamation for comments that have been posted, I understand it was on a Facebook post, because that company didn't delete them or moderate them. So if, for example, a media organisation uploaded a video image of something to do with activity on a farm and then the public comments underneath included, 'This is the address of this farm and we have to protest there or charge in and damage their property,' do you think, with the bill as you've currently written it, the media company would be liable for any incitement to trespass in that situation?

Mr Walter : No; they would need to evince an intention that people go and trespass or conduct criminal damage on that property. In that instance they're not; they just happen to be hosting some comments that are doing that. There might be a question about the person who made the post, whether they had the intention of inciting, but the media company itself would not get over the intention threshold on the very bare facts that you've just put to me.

Senator CHANDLER: Thank you for clearing that up. That was absolutely a hypothetical, but it was the hypothetical that was put to us, so thank you for clarifying that.

CHAIR: There have been questions raised by the Right to Know group about why the term 'journalist' hasn't been defined. Can you explain some of the reasons for that?

Mr Walter : The intention here was to leave the word 'journalist' to its ordinary meaning and to capture the fact that journalism is in a little bit of a state of flux, so narrowing down too heavily on a traditional definition of journalism might be a problem.

I think it's also worth noting, because I think there is a degree of confusion in some of the evidence that has been given and in relation to some of the submissions that have been made, that the way the defence is framed is around the material, not the fact that the individual is a journalist. This is slightly different to some of the options that have been put forward. For example, the Law Council suggested picking up the definition from the Evidence Act, which we would not support. If you look, for example, at the trespass offence, so 474.46(2), you'll see 'subsection (1) does not apply to material', and then the journalist aspect comes into the production of that material, so who actually made the material. So, the defence actually takes the material out of the scope of the offence and therefore takes out the journalist and probably the editor and the publisher and all those people in that process at the same time. That is the newest model for how we deal with these kinds of provisions, and it is modelled explicitly on the most recent model to go through this parliament.

CHAIR: Thank you, Mr Walter. We've had a number of different groups express fears—I'm not making a judgement on them doing so, because they weren't lawyers with expertise on the complexity of Commonwealth criminal law—that a sincerely-minded, bona fide whistleblower could be held criminally responsible for inciting trespass or inciting the damage of property here. Can you clarify whether or not a bona fide whistleblower could be captured by this legislation?

Mr Walter : It's very difficult to imagine circumstances where that would be the case; however, I want to be a bit careful here. When you say a 'bona fide whistleblower', I'm assuming that they are operating under one of the whistleblower legislation schemes. If they are complying with those schemes and acting in good faith under those schemes, then, yes, they would not be able to be prosecuted. Again, for the same offence, subsection (3) would kick in because the effect of, for example, the whistleblower schemes under the Corporations Act or the Public Interest Disclosure Act—it's probably less likely to apply here, but if it did—are two instances of whistleblower schemes where you are protected from criminal and civil action as a result of the disclosures that you've made.

CHAIR: What if you're a journalist fulfilling the job of informing the public about issues of public importance and, as a consequence of doing that, you make available material that is no doubt distressing in its content but that is provided in the spirit of journalism? Is that something for which a journalist would be held criminally accountable under these provisions?

Mr Walter : Once again, we come back to some of the previous answers. The intention question becomes very important. Intention is a high threshold to get over. The journalist must have intended the result that someone would go off and trespass or cause criminal damage.

CHAIR: If that's so, really the journalist is straying into activism themselves rather than being a journalist.

Mr Walter : Presumably, but it's a very high threshold to get over. Not that I'm meant to give my personal view, but my personal view was that was probably sufficient. However, in the interests in making this as clear as possible, that is why we then added in these additional protections which make it clear that if the material is in the public interest and is made by a person working in a professional capacity as a journalist it is out of scope—you don't even have to rely on that intention aspect; you've got a defence there.

CHAIR: One of the examples that was given by the Right To Know group was that the circumstance of the journalist who published the video that led to the brief banning of greyhound racing in New South Wales was at risk of being held criminally accountable under a provision like this. Can you provide some feedback to the committee about whether or not a journalist who published a video of animal cruelty, recorded on agricultural land, would face accountability if distributing that in the spirit of journalism?

Mr Walter : Again, we'd have to come back to the intention. If the intention is really raising public awareness of mistreatment of animals or things like that and there's no intention—this is the critical issue—to encourage people to go and trespass on that land or urging of people to go and cause criminal damage against that facility, then I can't see how the offence would apply in those circumstances. Again, we have that defence to fall back on, which is to say that actually highlighting something that was in the public interest—which was, as an example, widescale mistreatment of animals—is in the public interest. And if we're also talking about a journalist who has made that material in the course of their work, then there's a defence that applies in that instance. It's really difficult to see how you get over the intention bit, but, even if you do, there is a defence in there as well.

CHAIR: I'm going to raise something that will seem to be a bit of a statement of the obvious, given the expertise of the people at the table. Nevertheless, for those listening at home, it is that the decision on whether or not to prosecute under these offences is not something that's determined by politicians or by individual members of the public; it's something that's determined, isn't it, by the Commonwealth Director of Public Prosecutions, who examines a brief that has been put together by our law enforcement agencies, and it's something that is tested against the prosecution policy of the Commonwealth, which requires that there be reasonable prospects of success, which means a good level of evidence, and that the prosecution itself be in the public interest?

Mr Walter : That's correct.

CHAIR: And the public, I suppose, can take some comfort in knowing that there is an independence to the process.

Mr Walter : It's worth adding that, in making that assessment, the Commonwealth Director of Public Prosecutions is also going to take into account whether any defences might apply, and they're not going to pursue an action where there's an obvious defence that would apply in the circumstances.

CHAIR: Are there any further questions from my colleagues?

Mr Walter : Chair, if you wouldn't mind, I'd just like to clarify one very small point that I mentioned to Senator Carr, which was about the evidential burden.

CHAIR: Certainly.

Mr Walter : I left out two critical words that I think are important. Section 13.3 of the Criminal Code, subsection (6), is the evidential burden definition, and it basically says:

… means the burden of adducing or pointing to evidence—

which is what I said—

that suggests a reasonable possibility that the matter exists…

I just wanted to be clear that there's that reasonable possibility element, which I don't think I pointed out in my evidence.

CHAIR: But, just for clarity, once the evidential burden has been raised, the burden of proof nevertheless lies on the prosecution.

Mr Walter : That's right. Once that threshold has been gotten over, the matter then reverts to the prosecution to establish the matter.

CHAIR: Thank you, Mr Walter. Thank you very much for the presentations of all of you today. We appreciate your making the time available to be here and the effort that you put into preparation. We will close the committee's hearing today in just a moment. We have one document before the committee from Australian Pork Limited, who appeared earlier in the day. Is it the wish of the committee that this document be accepted as evidence? It is so ordered. That concludes today's proceedings. All questions on notice need to be returned by Friday, 23 August 2019. Thanks again for your evidence. Thank you also to our Hansard team, to broadcasting and also to all of the members of the secretariat who've made today possible.

Committee adjourned at 17:00