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NSW Government Bulletin

02 October 2019

#Government

Christine Jones

Published by Christine Jones, Peter Holt, Georgia Appleby, Rosie Donnelly

NSW Government Bulletin

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:

  • increase the maximum penalty for unlawful entry from $5,500 to $13,200. It also introduces a term of imprisonment for the offence, with offenders facing up to 12 months in jail
  • increase the maximum penalty for unlawful entry to $22,000, or three years imprisonment, when there is a serious risk to the safety of any person on those lands. This is the highest penalty available under the Inclosed Lands Protection Act
  • a new penalty is introduced for unlawful entry when the offender is accompanied by two or more persons. The maximum penalty for this conduct will be $22,000, or three years imprisonment. New South Wales is the first State to introduce a penalty for trespass conducted in groups
  • create a new offence for inciting or causing trespass. The maximum penalty for this new offence will be $11,000, or 12 months imprisonment
  • create new aggravating factors for the offence which includes damage to property and the wilful or negligent release of livestock
  • increase the penalty for committing the offence of leaving a gate open or interfering with a cattle grid from $220 to $1,650.  

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

In the media

ARLC: Abortion no longer a crime in NSW
NSW Parliament has passed historic laws decriminalising abortion. Women in NSW will finally have the freedom to decide what is right for their bodies without fear of criminal prosecution (26 September 2019).  More...

Right to Know essential to democracy in a digital world
Information Access Commissioners and Ombudsmen from across Australia and New Zealand are urging government agencies to do more to make information available for the benefit of citizens (26 September 2019).  More... 

Lapse of NSW terror offence 'embarrassing'
The NSW government has been criticised for allowing anti-terror legislation to lapse in an "embarrassing" oversight. The upper house on Wednesday considered the Justice Legislation Amendment Bill 2019, which includes changes to reinstate the offence of membership of a terror organisation (25 September 2019).  More...

Conflict of interest guidelines updated
The Governance Institute of Australia has updated its public sector guidelines for managing conflict of interest, taking into account new recommendations by the NSW Independent Commission Against Corruption (23 September 2019).  More...

New Sheriff’s Officers to keep law in order
Eighteen new Probationary Sheriff’s Officers joined the NSW Sheriff’s Office today, having taken their oaths to begin new careers, protecting our courts and those who use them, across 11 regional locations and three courthouses in Greater Sydney (20 September 2019).   More... 

Slavery in modern Australia': Sacked Uber Eats worker's case challenges gig economy
A delivery driver suing Uber Eats for underpayment and unfair dismissal has found support from the union movement, which says it is time to treat gig workers as employees (16 September 2019).  More... 

CCTV to capture crooks on candid camera
Criminals will soon be under the scrutiny of up to a thousand electronic eyes as the NSW Government rolls out high-definition CCTV to help protect local businesses in western Sydney (16 September 2019).  More...

NSW farm trespass bill criticised for turning into a crackdown on the right to protest
A New South Wales farm trespass bill has been criticised by civil liberties organisations, environment groups and unions for turning into “a crackdown on people’s rights to protest”.  More... 

In practice and courts 

IBA report: Legal Eexpenses insurance and access to Justice
The prohibitive cost of legal advice and representation affects access to justice in all jurisdictions, regardless of the level of economic development. The International Bar Association has published a report, Legal Expenses Insurance and Access to Justice, which examines the areas of law, services provided, limits of indemnity and excesses available in countries as varied as Germany, Japan, Australia, England and Wales and South Africa (September 2019). 

LSC: Call for submissions - Managed Investment Scheme Review of Uniform General Rules
The Legal Services Council has commenced its review of the Managed Investment Scheme Uniform General Rules 91A-91D and is seeking submissions from interested parties until 3 October 2019. You can find more information here.

HCA Bulletin
The High Court Bulletin is compiled approximately once a month, from February to December after each Court sitting -  See High Court of Australia Bulletin [2019] HCAB 07 (24 September 2019)

Reminder: Practice Directions - High Court of Australia, No 1 of 2019
Reminder: This Practice Direction takes effect in relation to matters set down for hearing after 1 October 2019. In consultation with the respondent and any interveners, the appellant must prepare a joint book of the authorities which reference will be made during the course of oral argument at the hearing of the appeal.  More... 

OAIC Guide to privacy regulatory action
Guide to privacy regulatory action has been updated to provide greater clarity about matters considered by the Commissioner regarding enforceable undertakings and independent experts. The update follows a review of similar policies and enforceable undertakings in relation to other regulatory areas within the Commonwealth (28 August 219).  More... 

Supreme Court Practice Notes
SC EQ 9 Practice Note SC EQ 9 - Commercial Arbitration List – 26 September 2019
This replaces the previous version of the PN issued 10 December 2008 and commenced 23 September 2019

NSW Fair Trading
The Building Professionals Board's website will permanently close from 2 October, and visitors will be redirected to the NSW Fair Trading website.  You’re encouraged to visit the certifier section of the NSW Fair Trading website today and update any weblinks and bookmarks. The website closure is part of the Board’s integration into NSW Fair Trading.

NSW IPC: Right to Know Week NSW
Right to Know Day (RTK) is an international annual event to be held on 28 September aims to increase awareness of individuals’ right of access to government information and open, transparent governance.  More...

NSW Courts Decisions of Interest
The NSW Court of Appeal has just published its latest Decisions of Interest Bulletin on the Court of Appeal website. Learn more here (26 September 2019). 

Published - articles, papers, reports 

The revolving door between government and the alcohol, food and gambling industries in Australia
Narelle Robertson, Gary Sacks, Peter Miller; Public Health Research & Practice: 25 September 2019
More than one-third of people registered on the Australian government Register of Lobbyists have previously been government representatives. This article aims to explore the incidence of the ‘revolving door’ phenomenon, whereby individuals move between positions in government and positions in the Australian alcohol, food and gambling industries.  More... 

Cases

DQP v Commissioner of Police, NSW Police Force [2019] NSWCATAD 201
ADMINISTRATIVE LAW - Privacy – Personal Information – disclosure – whether respondent exempt from privacy provision – whether safeguards sufficient – whether nature of action taken sufficient – evidence to establish loss and damage – insufficiency of evidence – nature of evidence.

Youssef Nouh v Commissioner for NSW Fair Trading [2019] NSWSC 1303
ADMINISTRATIVE LAW – judicial review – Property, Stock and Business Agents Act 2002 (NSW) ss 118(2) and 222 – where a delegate of the Commissioner for NSW Fair Trading had power to issue a direction to freeze an account – whether form of direction complied with the requirements of the Act – whether there was a requirement to afford procedural fairness before or after giving the direction – whether the direction was invalid because it was unreasonable; HELD: direction valid

Flevotomos v Independent Liquor and Gaming Authority (No 2) [2019] NSWCATAD 184
ADMINISTRATIVE REVIEW – liquor licensing – former licensee banned for life from holding a liquor licence – whether condition prohibiting former licensee from attending the licensed premises and having an involvement with the business should be imposed.

DSM v NSW Trustee and Guardian [2019] NSWCATAD 193
ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian - interests and welfare of protected person – whether to sell a protected persons property – financial management order 

Cappello v Roads and Maritime Services [2019] NSWCA 227
ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW)   STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act

Legislation 

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
The policy objective of the Amendment Bill  is to implement the recommendation of the Queensland Family and Child Commission report entitled 'A systems review of individual agency findings following the death of a child', and give effect to the Government's commitment to develop a new, independent model for reviewing child death cases.

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.

Christine Jones

Published by Christine Jones, Peter Holt, Georgia Appleby, Rosie Donnelly

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