Fighting ‘Illegitimacy’ with Illegitimacy: An Analysis of How Legislative Attempts to Silence Animal Activists are

Fighting ‘Illegitimacy’ with Illegitimacy: An Analysis of How Legislative Attempts to Silence Animal Activists are Counterproductive

Simon Brannigan

For those concerned about the plight of farmed animals in Australia, it is easy to be sceptical about a brighter future when one considers the current inadequacies in the legal framework. Animal welfare laws are both substantively weak and poorly enforced in Australia, owing primarily to the Department of Primary Industry’s position as ‘regulator’ and ‘promoter’ of the agricultural industry (‘the industry’) – responsibilities which inevitably conflict. Fortunately, animal activist organisations play an integral role in ensuring animal welfare standards are enforced by uncovering and publicising systematic breaches to our community – and this often stimulates subsequent law reform. However, State and Federal governments have recently introduced controversial laws that bear important similarities to US style ‘ag-gag laws’, as the laws seek to ‘gag’ the ability of activists to record and publicise industry breaches. This is because the industry and the Government perceive these acts of activists as ‘illegitimate’. This article, however, will argue that legislative attempts to silence activists are even less ‘legitimate’, as the effect of the legislation dismisses (rather than serve) the public interest in high animal welfare standards. Additionally, these laws also signify an undue departure from industry accountability and transparency, leaving us, the consumers, to question what it is that the industry has to hide. Taken together, these issues suggest that it may

In fact, numerous improvements to animal welfare standards and codes of practice, however slight, have occurred as a result of covertly obtained footage from activists.”

be more appropriate for the industry and Government to take a more proactive approach towards animal welfare into the future!

You may have seen or heard about the horrific, yet routine, practices that take place within the live export industry. If you have, there is a good chance that your awareness owes itself to the widespread media attention and community outrage that persists today after an activist organisation, Animals Australia, captured and published raw footage of the conditions of a live export ship in 2011. How else would you know about the internal operations of a ship situated in the middle of the ocean, en route to the Middle East – especially, when its passengers are voiceless? This kind of footage was, and still is, extremely important for informing subsequent law reform in the live export industry, and the same holds true for all other areas of intensive farming where activists have uncovered routine husbandry practices and welfare ‘standards’ that are out of step with community values and expectations. In fact, numerous improvements to animal welfare standards and codes of practice, however slight, have occurred as a result of covertly obtained footage from activists. This clearly indicates that Australians have an interest in higher animal welfare standards and industry transparency.

Nevertheless, the activities of animal welfare activists aren’t always viewed as legitimate itself, especially not by the industry. The relationship between the industry and animal welfare organisations has become increasingly adversarial, with community values and expectations surrounding higher animal welfare standards caught in the crossfire. This is alarming for two reasons. Firstly, it is quite apparent that we cannot rely on the current system of governance to meaningfully administer animal welfare laws. This is because the government Department responsible for doing so has become ‘captured’ by the industry, meaning that enforcing and improving animal welfare standards is perceived as a negative externality or inconvenient fetter on economic productivity. Secondly, the current adversarial landscape has pushed State and Federal governments to pass controversial ‘ag-gag’ style laws, which criminalise all forms of unauthorised entry onto commercial agricultural premises. Whilst the rationale for these laws is said to be to protect farmers and prevent biosecurity risks, the effect of these laws severely diminish media scrutiny of industry practices, resulting in a reduction in industry transparency and accountability. They are also said to have a ‘chilling effect’, meaning that they disincentivise the sharing of important information and undermine opportunities for democratic policy deliberation on issues of animal welfare.

Whilst there is no doubt Australians have an interest in protecting farmers and preventing biosecurity risks, these laws do not balance these interests fairly with Australian’s interests in higher welfare standards.

The failure to balance competing interests is most evident in the ag-gag style law in Australia – Section 474.46 of the Criminal Code Act 1995 (Cth). This provision was inserted into the Act in September 2019 by the Criminal Code Amendment (Agricultural Protection) Bill 2019 – and according to the AttorneyGeneral – it responds to increasing concerns about trespasses on agricultural premises. In simple terms, the provision makes it an offence to distribute materials using a carriage service with the intention of inciting others to trespass onto agricultural land. Whilst the provision is seemingly ‘fair’ as it arguably seeks to protect the reputation and safety of farmers, various submissions put to the parliamentary inquiry of the draft bill, voiced concerns on how the law would reduce the powerful role that activists play in ensuring the industry complies with welfare laws. This was not the only concern. The Law Council of Australia argued that such a law may be inconsistent with the Commonwealth Constitution – an argument which may suggest that there is some light at the end of the tunnel for those concerned about the plight of animals!

All citizens have an implied freedom of political communication derived from the Australian Constitution. As such, any laws passed by Parliament which infringe this freedom are invalid (unless they are deemed to be ‘reasonably appropriate and adapted to serve a legitimate end’ compatible with the Constitution). Even if the protection of farmers and their livelihoods is considered a legitimate end, the laws, could nevertheless, be an overreach. This may be the case if what is reasonably appropriate in

“Whilst there is no doubt Australian’s have an interest in protecting farmers and preventing biosecurity risks, these laws do not balance these interests fairly with Australian’s interests in higher welfare standards.

achieving the protection of farmers and their livelihoods is considered in light of its potential to reduce public democratic deliberation and debate. Indeed, Justice Kirby in a significant decision of the High Court of Australia (which dealt with the lawfulness of an activist organisation publicising footage obtained from a possum meat processing plant) expressed:

‘The concerns of a governmental and political character must not be narrowly confined. To do so would be to restrict, or inhibit, the operation of the representative democracy that is envisaged by the Constitution. Within that democracy, concerns about animal welfare are clearly legitimate matters of public debate...’

Taken together, this suggests that the Government may need to step up to the plate and take a more proactive approach towards animal welfare in the agricultural sector. If the status quo prevails, there will always be a role for activism and vigilantism because of the lack of any real improvements to animal welfare standards and enforcement of the law. The significance of this is that the industry and activist organisations will continue clash heads, leaving consumers to further speculate on the industry’s legitimacy.

As it remains, ag-gag laws will not remedy this problem. They are potentially invalid, and they seek to actually prompt and legitimise activities of activists as the law unduly silences activists. Perhaps, then, the best way to promote the interest of the industry is by introducing more meaningful reforms which satisfy the competing interest of those concerned with animal welfare. To achieve meaningful reform, the government will need to decouple the competing responsibilities of promotion and enforcement, and create a national independent statutory authority with responsibility for enforcing animal welfare. Through adequately balancing these interests, we will, hopefully, be able to see positive changes in the future.