Peter A Clarke

Yesterday’s vegan protests in Melbourne and throughout various agricultural sites in Australia has infuriated the Federal Government.  With  an election about to be called and a big rural constituency in mind, a tendency to beat the law and order drum becomes an necessity.   To that end the Attorney General, Christian Porter announced last Friday that that it was going to bring the Aussie Farms website under the regulation of the Privacy Act 1988 on 6 April 2019, last Saturday. 

The media statement provides:

The Coalition Government will bring the Aussie Farms website under the Privacy Act, exposing it to potential penalties of up to $2.1 million if it breaches the Act.

Attorney-General, Christian Porter, said the activities of Aussie Farms Incorporated created an unacceptable risk to hardworking farming communities and producers.

“The company publishes information about Australian farmers and agricultural producers including their names and addresses, exposing them to potential trespass, biosecurity hazards, and reputational damage,” the Attorney-General said.

“Listing this activist group as an organisation under the Privacy Act, now means that the company will have to abide by the provisions of the Act.”

Minister for Agriculture, David Littleproud, said he had repeatedly asked Aussie Farms to take the website down before someone was hurt or worse, but the group behind the website flat refused.

“The farming families who grow our food deserve to be able to do so without fear of invasion on their property and harm to their children,” Minister Littleproud said.

“The Aussie Farms website is intended to be an attack map for activists and it is already working as one. The fact Aussie Farms refused to take the website down when invasions began happening on farms displayed on their map shows they intend for it to be used as an attack map for activists.

“Aussie Farms will now be required to comply with the Privacy Act, which includes laws against the misuse of personal information. I note the maximum penalty for an offence under the Privacy Act is $420,000 for individuals and up to $2.1 million for a body corporate.”

Minister Littleproud also called on state governments to beef up trespass laws to provide real penalties for trespass, and to make publicly state that they expect the police will uphold these laws.

Background:

• The Australian Information and Privacy Commissioner previously found that Aussie Farms Incorporated was exempt from the Privacy Act because its annual turnover was less than $3 million.
• This move means Aussie Farms Incorporated is prescribed as an ‘organisation’ under the Privacy Act, which requires Aussie Farms to act in accordance with the Privacy Act, regardless of its annual turnover
• Prescribing Aussie Farms Incorporated allows the Information and Privacy Commissioner to investigate, either in response to a complaint or on her own initiative, if Aussie Farms Incorporated breaches the Privacy Act. The prescription comes into force as of tomorrow (Saturday, 6th April)

And the regulation was made, the day before the media release,  with the Privacy Amendment (Protection of Australian Farms) Regulations 2019  which provides:

1  Name

                   This instrument is the Privacy Amendment (Protection of Australian Farms) Regulations 2019.

2  Commencement

             (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1.  The whole of this instrument	The day after this instrument is registered.	6 April 2019

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under the Privacy Act 1988.

4  Schedules

 Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Privacy Regulation 2013

1  Before subsection 7(1)

Insert:

Aussie Farms Inc.

          (1A)  For the purposes of subsection 6E(1) of the Act, Aussie Farms Inc (ABN 17 356 117 654) is prescribed.

Small business operators that operate residential tenancy databases

2  At the end of Part 5

Add:

23  Application of the Privacy Amendment (Protection of Australian Farms) Regulations 2019

Subsection 7(1A) applies in relation to acts done, and practices engaged in, after the commencement of the Privacy Amendment (Protection of Australian Farms) Regulations 2019 (whether in relation to personal information collected before or after that commencement).

So as of last Saturday Aussie Farms Inc is subject to the regulation of the Privacy Act. This is hardly the best way to regulate privacy legislation.  Perhaps a rethink of the Small Business Exemption would have been a better approach.  But politics has its own logic.

Today the Government, per Porter, is now calling on the Privacy Commissioner to investigate Aussie Farms Inc.  Now the Privacy Commissioner has the jurisdiction to investigate.  Whether she will do that is another question and how long it will take her is another issue.  If history is any guide it may be a lot longer that the Attorney General hopes.  This is problem of the Government’s own making.  In fact of successive Government’s own making.  It enacts weak legislation with many exemptions and appoints a series of timid Commissioners to regulate.  It gives it inadequate funding so even if there was an inclination to take action, which there isn’t, the ability to do so is limited. Now there is privacy intrusive conduct which irritates and infuriates, with good reason as it is very privacy intrusive, the Government and it wants action taken now.

The Attorney General is discovering what many privacy practitioners have known for some time, that the Commissioner will take the slowest and least active line of least resistance to reach a non decision in the medium to long term.

The thing is that the Privacy Commissioner has the power to seek injunctive relief under section 80W of the Privacy Act 1988. For reasons that have never been explained the Commissioner has been averse to using those powers.  Given many ongoing privacy breaches occur on line injunctive relief is an effective legal mechanism.

The story has been reported with Vegan Activists Could Be Investigated Following Yesterday’s Protest Chaos, Animal rights group Aussie Farms faces crackdown after nationwide protests and Politicians back farmers against vegans which provides:

Federal and state politicians are going into bat for Aussie farmers who have been under attack by animal activists in a cross-border campaign.

Vegan protesters launched a campaign targeting a busy Melbourne street, abattoirs and farms in Victoria, NSW and Queensland on Monday, prompting a renewed call for farmers to take action and a federal government agreement to underwrite legal claims.

Attorney-General Christian Porter wrote to Privacy Commissioner Angelene Falk to consider investigating Under the Privacy Act the group allegedly behind the activism.

“There are strong grounds to conclude that Aussie Farms Inc is engaging in a systematic effort in collecting, using and disclosing personal information to the detriment of farmers and agricultural producers,” the letter dated on Monday states.

Mr Porter also wrote to the state and territory attorneys-general and police ministers to urge them to tighten up their criminal trespass laws.

Privacy laws were changed last Friday which exposed Aussie Farms’ website to significant penalties for publishing farmers’ addresses and contact details.

Nationals senator John Williams told Sky News that fines were not good enough and there was “a limit to what the farmers will put up with”.

“Farmers are not violent people. But when these people go out there and cut the fence and let the livestock out on the road, well farmers might get angry,” he said on Monday.

“And if the chips are down a bit, with the drought etc, you never know what they might do. There might be a punch-up, there might be someone hurt or whatever.

“But these people are promoting the wrong by stirring up and breaking the law.”

Earlier in the day, Prime Minister Scott Morrison slammed the actions of Aussie Farms as being “un-Australian” while speaking on 2GB radio.

He said it was wrong that farmers should be targeted when they are doing it tough during the drought.

Queensland’s Agriculture Minister Mark Furner has pushed for farmers to help police by gathering evidence against the vegan “zealots”.

“What they are doing is breaching the law. I’m extremely angry and have really had a gutful of these people.”

Mr Furner promised on-the-spot fines for activists would be rolled out within weeks.

Monday’s protests coincided with the first anniversary of a film documentary, lobbying against animal cruelty.

“The industry is telling people these animals are being killed ethically, that they are being killed humanely. The reality is … it’s the furthest thing from humane,” documentary director Chris Delforce told AAP.

The group wants state and federal agricultural ministers to “acknowledge cruelty in the process of killing animals for food, clothing and entertainment” and to add warning labels on animal products.