AG-GAG

What are ag-gag laws?

The term ‘ag-gag’ describes a variety of laws which seek to hinder or ‘gag’ animal protection advocates by limiting or preventing them from recording the operations of commercial agricultural facilities, or from making those recordings public.

Form and effect of ag-gag laws

Although the precise details of ag-gag style legislation vary between jurisdictions, they hold in common the effect of deterring activists and journalists from documenting and making public the treatment of animals on factory farms.

Ag-gag laws are often aimed at limiting the activities of undercover investigators, whistle-blowers and journalists.

They may take various forms, including:

•     Laws criminalising undercover or covert surveillance of commercial animal facilities.
•     Laws requiring that any obtained footage of animal cruelty must be turned over to enforcement agencies immediately.
•     Laws requiring potential employees of commercial animal facilities to disclose current or past ties to animal protection groups.

Ag-gag in the USA

Ag-gag laws have been implemented in a number of states across the US, including Alabama, Iowa, Texas and North Carolina.¹ A number of these laws have been successfully challenged on constitutional grounds, with courts ruling that they breach the First Amendment to the US Constitution (freedom of speech).²

Ag-gag in Australia

Ag-gag laws already exist in Australia, including legislation recently implemented at both the Federal and State/Territory levels.³ Ag-gag laws at the Commonwealth level and in NSW, QLD and SA include offences specifically targeted at animal advocates, including trespass and other conduct on agricultural land, and laws that prohibit inciting these activities.⁴ For example, the NSW Inclosed Lands Protection Act 1901 prohibits unlawful entry on agricultural land, and imposes higher criminal penalties in aggravated circumstances, such as interfering with a business, damaging property and wilfully or negligently releasing livestock. 

Ag-gag laws also include general biosecurity and surveillance laws which exist among all jurisdictions.⁵ Although these laws are often expressed as having general application, they predominantly impact on Australian animal advocates involved in organising, gathering and releasing undercover footage captured in agricultural facilities. This sort of footage has exposed extreme examples of animal cruelty, neglect and violations of animal protection laws, as well as legalised cruelty.⁶ For example, the cruel and illegal practice of live baiting in the greyhound racing industry has been exposed as a result of a number of undercover investigations by animal protection advocates.⁷

CASE STUDY: AG-GAG LAWS IN THE COURTROOM

Although ag-gag laws have not yet been successfully challenged in Australia, the animal protection organisation Farm Transparency Project are currently mounting a High Court case against the NSW Surveillance Devices Act 2007 (‘the Surveillance Act‘). Farm Transparency Project are seeking to challenge the constitutional validity of the Surveillance Act for restricting the implied freedom of political communication by hindering animal advocates from exposing animal cruelty to the public.⁸

The Surveillance Act is also relevant to another High Court case, Kadir v the Queen [2020] HCA 1, concerning the admissibility of evidence that had been obtained during an investigation regarding live baiting within the greyhound industry. The RSPCA conducted the animal cruelty investigation after receiving video evidence obtained in contravention of the Surveillance Act. Although the original video evidence was not admissible, the High Court determined that the subsequent evidence from the investigation was still admissible as evidence in animal cruelty proceedings. While ag-gag laws were not directly challenged in this case, the admissibility of evidence obtained as a result of a contravention of the Surveillance Act supports the exposure of animal cruelty within the greyhound industry.

Why do animal advocates gather undercover footage?

Animal advocates seek to expose animal cruelty, in a bid to raise awareness amongst the public of legalised animal cruelty, as well as to detect breaches of animal welfare legislation. Unlike any other area of criminal law, the vast majority of animal cruelty complaints are investigated and prosecuted by non-profit charitable organisations, who are largely dependent on donations from the public. While the work of these organisations is commendable, resource constraints and limited funding directly impact on their ability to monitor and enforce the law effectively.⁹ As a result, the vast majority of animal cruelty and welfare concerns go undetected.

In the absence of mandatory surveillance, animal advocates sometimes utilise undercover surveillance to help improve the monitoring and enforcement of animal protection laws by exposing cruelty incidents that would otherwise be unobserved and unprosecuted. Footage acquired through surveillance has the potential to be used in criminal prosecutions against individuals or corporations charged with animal cruelty.¹⁰

Why are animal advocates opposed to ag-gag laws?

Various Australian animal protection groups and advocates oppose the expansion of ag-gag laws in Australia. The position is well-explained by lawyer and co-founder of the Australian Animal Defenders Office, Tara Ward:

There are many problematic aspects of ag-gag laws. They don’t tackle the real issues, such as legalised cruelty to animals in factory farming and slaughterhouses, and extremely low penalties for animal cruelty and neglect in animal welfare laws. Instead of punishing those responsible for animal suffering, they punish the whistle-blowers or ‘messengers’. They stifle rather than encourage industry transparency and visibility, and make it more difficult to obtain evidence of sustained animal abuse carried out in animal enterprises over a period of time. They don’t protect the public interest in knowing how food animals are treated, and they stifle freedom of speech and assembly and the right to protest. In doing so, they prioritise industry profits above both animal welfare and the public interest in enforcing anti-cruelty laws.

Animal advocates argue that surveillance has long been used in Australia and abroad to increase transparency and encourage accountability, as most farmed animals are raised behind closed doors beyond public scrutiny. Broadcasting surveillance footage from inside these facilities promotes public awareness of farmed animal welfare, leading to open dialogue, which is essential in shaping public opinion and encouraging law reform.

In his judgment in the High Court case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199,¹¹ Voiceless Patron and former Justice of the High Court of Australia the Hon. Michael Kirby, defended the media’s use of surveillance footage obtained by animal activists on public interest grounds:

Parliamentary democracies, such as Australia, operate effectively when they are stimulated by debate promoted by community groups. To be successful, such debate often requires media attention. Improvements in the condition of circus animals, in the transport of live sheep for export and in the condition of battery hens followed such community debate.

How could transparency and accountability be improved?

The enforcement of animal protection laws could be improved in the short term through the installation of compulsory CCTV cameras in all commercial animal facilities, allowing authorities to monitor and investigate all incidents of cruelty in farms and slaughterhouses.¹²

Additionally, an increase in government funding to regulatory authorities to monitor and enforce animal protection laws is needed, as well as a significant reduction in the overreliance on underfunded charitable organisations to perform these functions.

Voiceless further supports the introduction of Independent Offices of Animal Welfare at the Federal, State/Territory levels, to help improve independence and regulatory oversight.

Learn more

• Read a discussion of ag-gag laws in Australia by Animal Defenders Office lawyer Tara Ward on the Voiceless Blog.
• Watch the presentations from the 2014 Voiceless Animal Law Lecture Series.
• Read Voiceless’s law reform submissions on the topic: ‘Serious Invasions of Privacy in the Digital Era’, ‘The Framework for a NSW Biosecurity Act’ and ‘Criminal Code Amendment (Animal Protection) Bill 2015’.

Voiceless has not and does not condone or encourage any illegal activities.

Last updated December 2021.