Using a transport service to induce trespassing on agricultural land

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Using a transport service to incite trespass on farmland is an offense under section 474.46 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty 12 months in prison.

To establish the offence, the prosecution must prove beyond a reasonable doubt that:

  1. You have transmitted, made available, posted or otherwise distributed material
  2. You did it using a transport service
  3. You intended by doing so to induce another person to encroach on farmland, and
  4. You were not concerned with whether the trespass itself or any conduct engaged in during the trespass could cause harm to a primary production business operating in the field.

A “carrier service” is “a service for conducting communications by means of guided and/or unguided electromagnetic energy”, which includes telephone calls, text messages and Internet transmissions such as e-mail and social media posts.

To “trespass” is to enter land without authorization, invitation or implied permission.

“Agricultural land” is land that is used for a primary production enterprise.

A “primary production business” is a business in pasture, feedlot operation, dairy farming, poultry farming, forestry, beekeeping, viticulture, aquaculture, fruit growing, vegetables, nuts or crops, raising animals for the production of meat or meat by-products, processing fish, wood or wood fiber or operating a slaughterhouse , a livestock sale yard or an approved establishment (within the meaning of Export Control Act 2020).

For the purposes of the definition, it does not matter whether part of the land was used for residential purposes or for a business that was not a primary production business.

You are not guilty of the offense if the material relating to a news or current affairs report that was:

  1. in the public interest, and
  2. Produced by a person working in a professional capacity as a journalist.

You are also not guilty if you are not subject to civil or criminal liability by reason of the operation of any Commonwealth, State or Territory law, or if you were an employee of a emergency service or a national relay service provider and your conduct was bona fide in the performance of your duties or your conduct was protected by the constitutional doctrine of implied freedom of political communication.

Duress is a defense to the prosecution.

Amalia H. Mercado