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Section 474.46 Criminal Code Act 1995
Using a Carriage Service to Incite Trespass on Agricultural Land

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Using a carriage service to incite trespass on agricultural land is an offence under section 474.46 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 12 months in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You transmitted, made available, published or otherwise distributed material
  2. You did so using a carriage service
  3. You intended by doing so to incite another person to trespass on agricultural land, and
  4. You were reckless as to whether the trespass itself or any conduct engaged in during the trespass could cause detriment to a primary production business being carried out on the land.

A ‘carriage service’ is ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions such as emails and social media messaging.

To ‘trespass’ is to enter land without authority, invitation or implied permission.

‘Agricultural land’ is that which is used for a primary production business.

A ‘primary production business’ is a business of grazing, operating animal feedlots, dairy farming, poultry farming, forestry, bee‑keeping, viticulture, aquaculture, growing fruit, vegetables, nuts or crops, farming animals for the purpose of producing meat or meat by‑products, processing fish, wood or wood fibre or operating an abattoir, livestock sale yard or registered establishment (within the meaning of the Export Control Act 2020).

For the purposes of the definition, it is immaterial that part of the land was used for a residential purpose, or for a business that was not a primary production business.

You are not guilty of the offence if the material related to a news or current affairs report that was:

  1. In the public interest, and
  2. Made by a person working in a professional capacity as a journalist.

You are also not guilty if you are not subject to civil or criminal liability due to the operation of a law of the Commonwealth, or a state or territory, or if you were an employee of an emergency service or national relay service provider and your conduct was in good faith in the course of your duties or if your conduct was protected by the constitutional doctrine of implied freedom of political communication.

Duress is a defence to the charge.

The Legislation

474.46 Using a Carriage Service to Incite Trespass on Agricultural Land

(1) A person (the offender ) commits an offence if:
(a) the offender transmits, makes available, publishes or otherwise distributes material; and
(b) the offender does so using a carriage service; and
(c) the offender does so with the intention of inciting another person to trespass on agricultural land; and
(d) the offender is reckless as to whether:
(i) the trespass of the other person on the agricultural land; or
(ii) any conduct engaged in by the other person while trespassing on the agricultural land;
could cause detriment to a primary production business that is being carried on on the agricultural land.

Penalty: Imprisonment for 12 months.

(2) Subsection (1) does not apply to material if the material relates to a news report, or a current affairs report, that:
(a) is in the public interest; and
(b) is made by a person working in a professional capacity as a journalist.

(2A) In a prosecution for an offence against subsection (1), the defendant does not bear an evidential burden in relation to the matters in subsection (2), despite subsection 13.3(3).

(3) Subsection (1) does not apply to conduct engaged in by a person if, as a result of the operation of a law of the Commonwealth, a State or a Territory, the person is not subject to any civil or criminal liability for the conduct.

Note 1: The Public Interest Disclosure Act 2013 provides that an individual is not subject to any civil or criminal liability for making a public interest disclosure.

Note 2: Section 1317AB of the Corporations Act 2001 provides that a person who makes a disclosure that qualifies for protection under Part 9.4AAA of that Act is not subject to any civil or criminal liability for making the disclosure.

Note 3: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

(4) Subsection (3) does not limit section 10.5 (lawful authority).

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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