Updated: Apr 4
The article is not a substitute for legal advice. See here for the site’s reposting policy.
The New South Wales (NSW) Parliament has passed a bill that would create an American-style right-to-farm law. This law, if enacted, would create a nuisance defense to NSW farms qualifying under the law. At the same time, the bill would increase the penalties for trespass resulting in released livestock. Trespass penalties increase to a possible three-year jail term for trespassers. With the debate about this legislation ongoing, we will have to wait to see if this legislation passes.
New South Wales Right-to-Farm Law
The NSW right-to-farm law would provide a traditional right-to-farm nuisance defense to qualifying agricultural operations. The operation must be conducting a “commercial agricultural activity” to be eligible for the defense. An agricultural activity “means an activity carried out for, or in connection with, agriculture” (§ 3(1)). Commercial agricultural activity is “an agricultural activity carried out for or in connection with a primary production business within the meaning of the Income Tax Assessment Act 1997 of the Commonwealth” (§ 3(1)).
An NSW commercial agricultural activity will not be considered a nuisance as long as the operation meets the following requirements:
Carried out lawfully,
Not carried out negligently, and
The activity has been carried out for an agricultural purpose for at least 12 months.
The right-to-farm law makes clear that certain operations are protected such as commercial livestock operations, commercial slaughter or tannery operations, forestry, aquaculture, and livestock competition, such as stock shows and rodeos. Let’s use an example to show how this would all fit together.
For example, an NSW commercial egg-laying operation with 30,000 hens has all necessary and required permits from the state and began operation in late 2012. Neighbors start to complain about dust associated with the operation in early 2019. If the operation is being carried out in a lawful and non-negligent manner, then the operation would fall under the new right-to-farm law. The NSW defense is similar to how many U.S. state right-to-farm laws would operate.
The law would provide additional requirements if the commercial agricultural activity is found to be a nuisance by an NSW court. This could happen if the activity meets the commercial agricultural activity definition but does not meet any of the other requirements. For example, if the 30,000 hen layer operation had only been in business for 11 months and was found to be a nuisance, then the court could use the nuisance remedies. The remedies require that the court cannot order the operation to shut down. Instead, the court should look for ways to allow the operation to continue by:
Managing, modifying or reducing the activity causing the nuisance,
Ensuring that the change to the operation is consistent with those used by other commercially viable agricultural operations, and
Ensuring that the change will not likely disturb the complaining party.
Looking back at our earlier example, if the egg-laying operation is a nuisance, then the court can look to the practice on the farm potentially causing a nuisance and determine a way using potentially expert testimony, that the operation could be managed differently, modified, or otherwise changed to reduce the nuisance. These changes would need to be consistent with what other farms do to stay commercially viable, and the changes would need to not cause a new nuisance to the complaining neighbor.
Changes in Trespass Law
The other changes in the law for farms is increasing trespass penalties under the Inclosed Lands Protection Act 1901 No. 33. The way this law currently is written, trespass penalties on agricultural land enclosed by a fence or other structure would face a maximum penalty of $5,000 in Australian dollars. Penalties would increase for one trespasser to $13,200 and up to 12 months in prison. If two or more trespassers are involved or when circumstances warrant it, the penalties would increase to $22,000 and up to 3 years in prison for each offender — substantial increases in trespassing penalties.
I focus on this today, not for the right-to-farm aspects of the law. The interesting development here is in the trespass law changes. These changes are in response to concerns that trespassers were coming on farms with biosecurity plans, or a plan laying out the precautions a farm takes to minimize the risk of introducing an infectious disease into the livestock population on the farm. At the same time, the law includes penalties for leaving gates open on fenced-in farmland. Penalties in the cases of leaving a gate open would be $1,650. The NSW officials introducing the law have been clear that this change is to send a message to animal activists.
This law, especially for the trespass provisions, has been revised to protect the right to protest in other locations. Earlier drafts of the law had language that would potentially limit protests in other enclosed spaces such as schools, hospitals, mines, or banks. The law has been revised to make clear the focus is on agricultural lands.
Another debate has focused on how this bill risks bringing U.S.-style ag-gag laws to Australia. There are many differences between the two types of laws; Australia’s law is focused on increased trespass penalties while state laws in the United States characterized as ag-gag have not often had that focus. This is an interesting comparison and one I’m working on developing more information on in the future.
For now, this debate will continue to be interesting to watch for those interested in right-to-farm laws to see if this bill will pass in Australia and the final form it will take.
Right to Farm Bill of 2019 (Pass both houses, New South Wales Parliament).