New South Wales Considers Right-to-Farm Law and Enhanced Trespass Penalties

Rural scene in New South Wales Australia. Image by Indigo Skies Photography.

The article is not a substitute for legal advice.  Note: this post is based on the First Print of the bill and not subsequent prints.

            The Australian state of New South Wales (NSW) has recently seen a bill introduced in Parliament that would create an American-style right-to-farm law. This law, if enacted, would create a nuisance defense to NSW farms qualifying under the law. At the same time, the bill would increase the penalties for trespass that results in released livestock. Trespass penalties increase to a possible three-year jail term for trespassers. The debate in this legislation is ongoing, and we will have to wait to see if this legislation passes.

New South Wales Right-to-Farm Law

            The proposed NSW right-to-farm law would provide a traditional right-to-farm nuisance defense to qualifying agricultural operations. The operation must be conducting a “commercial agricultural activity” to be eligible for the defense. An agricultural activity is “means an activity carried out for, or in connection with, agriculture.” (§ 3(1)). Commercial agricultural activity is “an agricultural activity carried out for or in connection with a primary production business within the meaning of the Income Tax Assessment Act 1997 of the Commonwealth.” (§ 3(1)).

            An NSW commercial agricultural activity will not be a nuisance as long as the operation meets the following requirements:

  1. Carried out lawfully,
  2. Not carried out negligently, and
  3. The activity has been carried out for an agricultural purpose for at least 12 months.

Let’s use an example to show how this would all fit together.

            For example, an NSW commercial egg-laying operation has 30,000 hens and has all necessary and required permits from the state began operation in late 2012. Neighbors start to complain about dust associated with the operation in early 2019. If the operation is being carried out in a lawful and non-negligent manner, then the operation would fall under the new right-to-farm law. The proposed NSW defense is similar to how many U.S. state right-to-farm laws would operate.

Image of koala mosaiculture in the Royal Botanical Gardens in Sydney. Image by Paul Goeringer

            The proposed law would provide additional requirements if the commercial agricultural activity is found to be a nuisance by an NSW court. This could happen if the activity meets the commercial agricultural activity definition but does not meet one of the other requirements. For example, if the 30,000 hen layer operation had only been in business for 11 months and been found to be a nuisance, then the court could use the nuisance remedies. 

            The remedies require that the court can not order the operation to shut down.  Instead, the court should look for ways to allow the operation to continue by:

  1. Managing, modifying or reducing the activity causing the nuisance,
  2. The change to the operation is consistent with those used by other commercially viable agricultural operations, and
  3. The change will be unlikely to disturb the complaining party.

Looking back at our earlier example, if the egg-laying operation is a nuisance, then the court can look to the practice on the farm that is potentially causing a nuisance and determine a way with potentially expert testimony on how the operation could be managed differently, modified, or other changes made that would reduce the nuisance. These changes would need to be consistent with what other farms do to stay commercially viable, and the changes would need not to cause a new nuisance to the complaining neighbor.

Changes in Trespass Law

            The other changes in the law for farms is increasing trespass penalties under the Inclosed Lands Protection Act 1901 No. 33.  Under this law currently, trespass penalties on agricultural land enclosed by a fence or other structure would face a maximum penalty of $5,000 (remember that is in Australian dollars).  Penalties would increase for one trespasser to $13,200 and up to 12 months in prison.  If two or more are involved or when circumstances warrant it, the penalties would increase to $22,000 and up to 3 years in prison for each offender.  These are substantial increases in penalties for trespassing.

Image of Sydney Opera House and Sydney Harbour Bridge. Image by Paul Goeringer

Why Care?

            I focus on this today, not for the right-to-farm aspects of the law. The exciting development has been in the trespass law changes. The changes are in response to concerns that individuals were coming on farms with biosecurity plans. At the same time, the law includes penalties for leaving open gates on fenced-in farmland. Penalties in the cases of leaving open a gate would be $1,650. The NSW officials introducing the proposed law has been clear that this change is to send a message to animal activist.

            This bill, especially for the trespass provisions, is being seen by some as a cracking down on the right to protest. Those opposed have pointed out that the language would potentially limit protests in other enclosed spaces such as schools, hospitals, mines, or banks. The bill would have left in place exemptions for journalists and for whistleblowers. The bill is still being debated, and it will be interesting to see the changes made to the bill based on the concerns raised.

            Another debate has focused on how this bill risks bringing U.S.-style ag-gag laws to Australia. There are many differences between the two types of laws; Australia’s law is focused on increase trespass penalties where state laws in the U.S. characterized as ag-gag, have not had that focus in many cases. This is an interesting comparison and one I’m working on developing more information on in the future.

            For now, this debate will continue to be interesting to watch for those interested in right-to-farm laws to see if this bill will pass and the final form it will take.

References

Right to Farm Bill of 2019 (First Print, New South Wales Parliament).

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