I thought I would elaborate on recent lobbying by the National Farmers Association to have tougher trespass laws for animal welfare advocates who gain access to animal production facilitates in order to record welfare abuses.
These types of legislation are known as “Ag-Gag” laws and have been the subject of scholarly scrutiny in the U.S since its introduction in six states.
The states take various approaches, for example, Iowa’s law is akin to fraud, and the State of Utah addresses the taking of images directly by prohibiting recording of animal production facilities without the consent of the owner.
In a bill passed in Idaho in 2014, A person is will be guilty of “interference with agricultural production” if he or she is not employed by a farm, or having misrepresented in gaining employment, or threatening or forcing their way on to the property, in order to take recordings of the farm without consent. A person found guilty could face a term of imprisonment of not more than 1 year or $5,000 fine or both.
Whilst the implications of Ag-Gag legislation do not appear to have received much scholarly attention in Australia, it is imaginable that any attempt to prohibit the filming of animal welfare abuse would infringe the implied freedom of political communication under the Constitution. In the U.S, however, the First Amendment expressly empowers a person with the freedom of speech.
Historically, newsgathering entities have enjoyed significant First Amendment protections from litigation by those who are the subject of the publication.
Furthermore, they have been able to enter facilities by obtaining entry level positions with the use of false identities to take video footage with hidden cameras.
The fact that these Ag-Gag laws now makes this illegal appears to be a direct violation of the First Amendment that “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people”.
This is a contentious issue and far too complex for my understanding of U.S law and I look forward to a direct judgement from the Supreme Court on this matter as so far commentators have been speculative as all the cases have been civil rather than criminal in nature.
Back in Australia, I would presume that any Ag-Gag law would be subject to the implied freedom of communication under the Constitution and therefore scrutinised primarily by the Lange Test. It will have to be determined whether the law effectively burdens the freedom of communication about governmental or political matters, and is reasonably appropriate and adapted to serve a legitimate purpose.
Furthermore, the High Court may find that Ag-Gags laws are reasonably necessary to protect the safety of the public and animal welfare advocates
In any rate, I truly hope that the Australian judicial system will not have to interpret any Ag-Gag legislation and that state and federal governments will have a greater focus on strengthening and enforcing animal welfare legislation so that it does not fall to animal welfare advocates to carry out the investigations.
Drones and the law of trespass
A recent article in the SMH has stated that Animal Liberation has just acquired a surveillance drone designed to hover above animal production facilities in attempt to overcome any trespass laws.
In Australia, trespass occurs where a person directly, intentionally or negligently and without permission causes somephysical interference with another person’s property. Trespass does not require proof of damage or harm. In terms of airspace above the land, any intrusion into air that is needed for the ordinary enjoyment of land will be trespass.
In Bernstein of Leigh v Skyviews & General Ltd  QB 479, the defendants took photos of the plaintiff by an aeroplane at low altitude and then offered them for sale to the plaintiff. The court found that the right of the plaintiff did not extend to an unlimited height but as was necessary for the ordinary use and enjoyment of the land. Animal Liberation NSW executive director Mark Pearson has stated that the drones will document “from above 10 metres and below 30 metres, and it is lawful”.
However, Northern Territory Cattlemen’s Association (NTCA) head David Warriner has said that a drone flying at 10m will cause a disturbance of livestock. It will be interesting to see how the courts will address this, as organisations like MLA and NTCA have a vested interested in pursuing these matters. That is if the farmers don’t shoot them all down first.
Animal activists have always pushed the boundaries as to what is acceptable and even legal in order to promote animal welfare and rights. In a society that recognises the rights of private citizens, there needs to be respect for peoples’ property and to ensure that peoples’ livelihoods are not interfered with. Recording animal production systems affects the rights of an individual, the rights of land owners, and intersects a right to privacy and trespass laws and will for this will surely become subject of scholarly scrutiny in Australia.
Separate to the work of animal activists, any person who works at an animal production facility should be able to “blow the whistle” without fear of repercussions. I believe that the answer in both the U.S and Australia lies in incorporating the many codes of conduct into the regulatory systems in order to make them enforceable. Furthermore, there needs to be a means that for whistle blowers to report animal cruelty which will be investigated by regulatory authorities.
A farmer who employs best practice in producing animal products should rightly be annoyed in an animal activist is on his or her property, because it should be the a government agency who investigates these matters. A government agency is bound by the law whereas the animal activist is not. However,until the governments in both Australia and U.S.A make animal welfare a priority it will fall to the animal activist to uncover animal cruelty.