DRONE aircraft have given animal activists a new tool for monitoring intensive agriculture, and it’s not clear what farmers can do about it.
That’s how Brisbane-based McCullough Robertson agribusiness lawyer Trent Thorne put it to lotfeeders at the BeefEx conference recently - although he has some ideas.
“I would be the first to advocate greater transparency across intensive farming and grazing operations,” Mr Thorne told the Gold Coast conference, “and there is little doubt that Australian Lot Feeders Association (ALFA) is ahead of the curve, but a line needs to be drawn in the sand in terms of having these groups paint the industry in a poor light with selective editing and sensational reporting.”
No-one wants to be stalked by an unwelcome eye-in-the-sky, Mr Thorne said. However, the Australian legal system has currently got few proven mechanisms for dealing with this form of invasion of privacy.
Prosecution for trespass is only possible if the drone is flown at a height that interferes with “ordinary use and enjoyment” of the landowner - but what constitutes a violation under this law has been poorly tested.
Recreational drone operators able to fly without a licence must keep their machines under a ceiling of 122 metres, as well as only flying during the day, in a line of sight, and no closer than five kilometres from an airport.
A similar greyness shrouds the prospect of suing for nuisance. Nuisance means proving substantial and unreasonable interference with an owner’s enjoyment and use of their land - a case that might be worthwhile pursuing if cattle are spooked by a drone, Mr Thorne said.
Privacy laws appear to offer little protection. The High Court has ruled that the operations of enterprises licenced by a public authority are not confidential, and that “improperly” obtained footage is not tainted for subsequent use.
Privacy as protection
For “real teeth” in privacy legislation, Mr Thorne pointed to the Preserving Freedom From Unwarranted Surveillance Act recently implemented in Missouri, the United States.
The Act is one of several so-called 'ag-gag' laws that have been rolled out (and often overturned) across the US.
Mr Thorne said the Bill “prevents any person from using a drone or unmanned aircraft to gather evidence or to conduct surveillance of an individual or property without the consent of the individual, and any information obtained or collected cannot be used as evidence in a criminal proceeding.”
In Australia, the private Senators Bill being introduced by Western Australian Liberal Chris Back seeks to have any footage of animal abuse handed to authorities without delay. The Bill also seeks stricter penalties for people who trespass. But at the moment, Mr Thorne said, flying over the land doesn’t constitute a trespass.
The Australian Law Reform Commission (ALRC) is also considering the nature of privacy in an age of rapidly evolving technology. The ALRC’s discussion paper, “Serious Invasions of Privacy in the Digital Era”, was released for comment earlier this year.
Local solution to 'legal swamp'
Contemplating this legal swamp, Mr Thorne suggested that the “low-hanging fruit” for feedlot operators concerned about drone surveillance might lie with local council by-laws.
“Given the importance of your operations to local economies, there is the chance if you can sound out your local councils to see whether they would be willing to pass by-laws that cover off on these issues,” he said.
Activists justify invasive surveillance by pointing to inadequate resourcing of the RSPCA, Mr Thorne said.
“To me that’s a distortion of the facts. In essence every government-funded regulator would say they are underfunded, but I don’t see the ACCC (Australian Competition and Consumer Commission) putting listening devices in boardrooms around the country. I don’t see why these groups should be different to everyone else.
“You can only imagine the howls of indignation from these activists if you started sticking a camera in their homes - you’d hear all about their civil liberties being breached.
“This is an area ripe for exploitation, and we shouldn’t allow it to become the norm that when you go out to work for the day you look up into the sky to see whether there is a drone overhead. The law needs to catch up with reality.”