Does the right to farm bill make it harder to ‘share our space’?
Nuisance shield
The Right to Farm Bill 2019 (Bill) provides that no action lies in respect of nuisance by reason only of the carrying out of commercial agricultural activity, if the activity is carried out lawfully, not carried out negligently, and is carried out on agricultural land for a period of at least 12 months.
The phrase “commercial agricultural activity” means an agricultural activity carried out for, or in connection with, a primary production business.
The term “agriculture” includes aquaculture and forestry.
The provisions in the Bill seek to establish a nuisance shield which provides a defence to common law nuisance claims levelled at farmers for what are considered normal farming activities – effectively the smells, sounds, and realities of their work.
The Bill also provides that if in proceedings a Court does find that a commercial agricultural activity constitutes a nuisance, the Court must not make an order that would require the agricultural activity to stop if it is satisfied that it could make an order that the activity is managed or reduced, consistent with an efficient and commercially viable agricultural operation and unlikely to significantly disturb the other party to the proceedings.
These provisions are about enabling farmers to continue by adjusting their activities to manage, modify and/or reduce the nuisance.
The model for the nuisance shield is adopted from Tasmanian legislation – the Primary Industries Activities Protection Act 1995.
Second element – further locking up inclosed lands
The Bill also amends the Inclosed Lands Protection Act 1901 (Inclosed Lands Protection Act) to introduce new trespass offences under that Act and to increase penalties for existing offences.
The provisions in the Bill:
These changes are about addressing what the Government sees as the rise of ‘vegan vigilantes’ who trespass on farms and seek to bring attention to their cause.
What does this mean for access to schools?
The problem is that tacking on the changes to the Inclosed Land Protection Act means that the new offences and penalties apply to all inclosed lands under that Act.
Under the Inclosed Lands Act, Inclosed lands is defined as a “school, child care service, hospital or nursing home or any other public or private land that is inclosed or surrounded by a fence or wall or other erection or natural feature, and includes a building.
This definition is very broad and extends to cover both public and private schools.
The Government has previously promoted the ‘Share our Space Program’ which was launched by Premier Gladys Berejiklian and Education Minister Rob Stokes in December 2017.
The Program seeks to enable access for the broader community to enjoy school playgrounds during the holidays. Schools across NSW are participating with Share Our Space to open 300 school playgrounds, basketball courts, running tracks, ovals and gardens in the spring school holidays. Around 200 schools are in regional and rural areas of NSW. The intention is to give families access to outdoor green space and naturally shaded play areas.
However, as currently drafted the Bill may have the unintended consequence of making it harder to provide public access to facilities in existing public schools.
Conclusions
In Director of Public Prosecutions (NSW) v Strang [2011] NSWSC 259 the issue on appeal was whether the premises, a Best & Less store were “inclosed lands” under the definition in s. 3 of the Inclosed Lands Protection Act. There was an expansive construction of the definition and the Supreme Court found that the definition of inclosed lands does not exclude commercial or even retail premises; nor does it exclude premises which are contained within a larger building such as a commercial shopping centre or complex and applied even to premises open to the public.
Pauline Wright, the president of the NSW Civil Liberties Council, said the new law was unnecessary and the wording too broad and existing laws against trespass already dealt with the issue adequately.
Although the Bill was designed to provide farmers with specific protections and legislative defences in relation to animal rights protests on farms, the provisions of the Bill in fact apply to any land, that are by the definition ‘inclosed’. There is a major concern that the proposed sharp rise in penalties will have significant implications on accessing public school facilities or any land, either public or private, which could result in an offence of trespass under the proposed changes.
Authors: Peter Holt, Georgia Appleby and Rosie Donnelly
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Bills
Regulations and other miscellaneous instruments
Liquor Amendment (Miscellaneous) Regulation (No 2) 2019 (2019-463) — published LW 20 September 2019
Bills introduced Government – 27 September 2019
Road Transport Amendment (Mobile Phone Detection) Bill 2019
Bills passed by both Houses of Parliament – 26 September 2019
Justice Legislation Amendment Bill 2019
Reproductive Health Care Reform Bill 2019
Bills assented to
Justice Legislation Amendment Act 2019 No 10 — Assented to 26 September 2019
Queensland
Bills
Child Death Review Legislation Amendment Bill
Introduced by: Hon Y D'Ath MP on 18/09/2019
Stage reached: Referred to Committee on 18/09/2019
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Police Powers and Responsibilities and Other Legislation Amendment Bill
Introduced by: Hon M Ryan MP on 18/09/2019
Stage reached: Referred to Committee on 18/09/2019
Electoral (Voter's Choice) Amendment Bill
Introduced by: Mr D Janetzki on 18/09/2019
Stage reached: Referred to Committee on 18/09/2019
Victoria
Acts
Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Act 2019
Act Number: 5/2019 - Sections 48-54, 56-60, 62, 80-82 of this Act came into operation on 16 September 2019 s. 2(4)Sections 48-54, 56-60, 62, 80-82 of this Act came into operation on 16 September 2019 s. 2(4)
Children Legislation Amendment Act 2019
Act Number: 30/2019 Date of assent: 17 September 2019
Legal Profession Uniform Law Application Amendment Act 2019
Act Number: 31/2019 Date of assent: 17 September 2019
Statutory Rules
No 83 Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Amendment Regulations 2019
No 87 Magistrates' Court General Amendment Regulations 2019
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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