Landholders and agricultural businesses have become increasingly concerned in recent times as to their rights when faced with trespassers on their property, particularly protestors.
In the next few weeks, the Federal Government is expected to pass two key amendments to the Criminal Code Act 1995 (Cth), which will introduce two new offences that aim to protect Australian farmers and agricultural businesses against those inciting trespass and damage to agricultural land.
The offences relate to the use of a carriage service to “transmit, make available, publish or otherwise distribute material” with an intention to incite another person to trespass on agricultural land, or unlawfully damage or destroy property, or commit theft, on agricultural land.
Agricultural land is broadly defined as land used for a primary production business. It includes land used for multiple purposes (including rotating pastures or where part of the land includes a family home or worker’s cottage).
Presently, at common law, a person has a defence to trespass if he or she entered onto the land for the preservation or protection of life or property.
It is already an offence for a person to unlawfully:
- enter, or remain, on land used for agricultural or horticultural purposes, grazing and animal husbandry; and
- open and leave open any gate, fence or other barrier that encloses the land used for this purpose.
What do these changes mean?
The amendments are a positive step towards protecting the property rights of farmers, graziers and agricultural businesses.
How? The offence of inciting trespass will carry a maximum of 12 months’ imprisonment, while the offence of inciting damage and destruction may lead to up to 5 years’ imprisonment.
Exemptions will apply to journalists and for the lawful disclosure of information including by whistleblowers.
Author: Andrée Weller (Special Counsel)