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Senate

Criminal Code Amendment (Agricultural Protection) Bill 2019

Supplementary Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)
Amendments to be Moved on Behalf of the Government

AMENDMENTS TO THE CRIMINAL CODE AMENDMENT (AGRICULTURAL PROTECTION) BILL 2019

(Government)

GENERAL OUTLINE

1. The purpose of these amendments to the Criminal Code Amendment (Agricultural Protection) Bill 2019 Bill ('the Bill') and the Explanatory Memorandum to the Bill is:

To include wood processing and wood fibre processing facilities within the definition of 'primary production business' included in the Bill, providing these facilities with the same protections the Bill would offer to similar industries, and
to remove the need for a defendant to meet an evidential burden in relation to the journalism defences proposed in the Bill.

2. Specifically, this second measure would mean that the defendant would no longer have an evidential burden in relation to whether the material relates to a news report or a current affairs report that:

is in the public interest, and
is made by a person working in a professional capacity as a journalist.

3. The legal burden would remain with the prosecution.

FINANCIAL IMPACT

4. These amendments will have no financial impact.

Statement of Compatibility with Human Rights

Criminal Code Amendment (Agricultural Protection) Bill 2019

1. The amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The amendments to item 2 of the Bill would displace the evidential burden that applies to the journalism exemptions found in proposed sections 474.46(2) and 474.47(2) of the Bill, effectively transforming those exemptions into elements of their respective offences.

Human rights implications

3. The amendments would strengthen the protections that would be available to journalists under the Bill, by removing the requirement that the defendant meet the evidential burden in relation to certain matters related to journalism.

4. As such these amendments engage the right to free expression under Article 19 of the International Covenant on Civil and Political Rights. As these amendments would strengthen protections available to journalists (as compared to the protections provided in the Bill), to the extent that this right is engaged by the amendment it supports and bolsters this right.

NOTES ON AMENDMENTS

Amendment 1: Schedule 1, item 2, page 4 (after line 13), after paragraph (p) of the definition of primary production business

1. This amendment would expand the definition of primary production business to include 'a business of operating a wood processing facility or a wood fibre processing facility'.

2. 'Wood processing facility' is intended to cover operations relating to the processing of wood into wood products, such as sawmills.

3. 'Wood fibre processing facility' is intended to cover operations relating to the processing of wood fibre, including but not limited to particle board manufacturing, and paper product manufacturing.

Amendment 2: Schedule 1, item 2, page 5 (lines 11 and 12)

4. This amendment would omit the note proposed by the Bill to be inserted following new subsection 474.46(2). The omission of this note is consequential to the insertion of new subsection 474.46(2A) by amendment 2.

Amendment 3: Schedule 1, item 2, page 5 (after line 12), after subsection 474.46(2)

5. This amendment would insert a new subsection 474.46(2A) after subsection 474.46(2). This new subsection would provide that in a prosecution under section 474.46(1), the defendant does not bear an evidential burden in relation to matters in subsection 474.46(2), despite the effect of subsection 13.3(3) of the Criminal Code.

6. Subsection 474.46(2) provides an exemption against an offence under subsection 474.46(2) in circumstances where the material relates to a news or current affairs report and:

is in the public interest, and
is made by a person working in a professional capacity as a journalist.

7. Subsection 13.3(3) of the Criminal Code relevantly provides that where a defendant wishes to rely on an exception, exemption, excuse, qualification or justification provided by a law creating an offence, the defendant bears an evidential burden in relation to the offence.

8. By displacing the effect of section 13.3 of the Criminal Code, this amendment would remove the need for the defendant to meet the evidential burden in relation to these matters. Instead, the exemption would become an exclusion with the legal burden residing with the prosecution.

9. As a result of this amendment, the prosecution would have to prove that the material either:

did not relate to a news or current affairs report
was not in the public interest, or
was not made by a person working in a professional capacity as a journalist.

10. This is intended to strengthen the protections that the Bill provides to journalists from the offences as journalists will not need to lead evidence regarding their status or the public interest of their work in order to engage the protection.

Amendment 4: Schedule 1, item 2, page 6 (lines 9 and 10)

11. Amendment 3 would omit the note proposed by the Bill to be inserted following new subsection 474.47(2). The omission of this note is consequential to the insertion of new subsection 474.47(2A) by amendment 2.

Amendment 5: Schedule 1, item 2, page 6 (after line 10)

12. This amendment would insert a new subsection 474.47(2A) after subsection 474.47(2). This new subsection would provide that in a prosecution under section 474.47(1), the defendant does not bear an evidential burden in relation to matters in subsection 474.47(2), despite the effect of subsection 13.3(3) of the Criminal Code.

13. Subsection 474.47(2) provides an exemption against an offence under subsection 474.47(2) in circumstances where the material relates to a news or current affairs report and:

is in the public interest, and
is made by a person working in a professional capacity as a journalist.

14. Subsection 13.3(3) of the Criminal Code relevantly provides that where a defendant wishes to rely on an exception, exemption, excuse, qualification or justification provided by a law creating an offence, the defendant bears an evidential burden in relation to the offence.

15. By displacing the effect of section 13.3 of the Criminal Code, this amendment would remove the need for the defendant to meet the evidential burden in relation to these matters. Instead, the exemption would become an exclusion with the legal burden residing with the prosecution.

16. As a result of this amendment, the prosecution would have to prove that the material either:

did not relate to a news or current affairs report
was not in the public interest, or
was not made by a person working in a professional capacity as a journalist.

17. This is intended to strengthen the protections that the Bill provides to journalists from the offences as journalists will not need to lead evidence regarding their status or the public interest of their work in order to engage the protection.


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