Targeting backyard vegie gardens

VICTORIA’S NEW AG-LAWS – BACKYARD GARDENS ARE AT RISK …

Last week’s post on Victoria’s Agriculture Legislation Amendment Bill stirred up a bit of controversy.

A couple of people have queried whether the new laws could in fact be used to target backyard veggie gardens.

The concern I have on that front, relates specifically to the Bill’s changes to the Catchment and Land Protection Act, and the powers its “authorised officers” hold to “enter and search land”.

Under Clause 81 (2) of the Act, the powers currently don’t apply to a dwelling, or if the owner/occupier of the land refuses entry.

The Bill’s changes, however, remove the right of the occupier/owner “of the land” to refuse entry, leaving only the qualifier that “it does not apply to a dwelling”.

The effect of this change is twofold (by my reading).  It not only removes the owner or occupier’s right to refuse access to their property without a warrant. It also decouples the reference to land in the original Act to that of simply the “dwelling”.

This is significant because according to most legal definitions I found for a dwelling – NOT given in the Bill or the original Act – it refers only to the “habitable structure” on the land, NOT the land itself.

That was certainly the ruling of a 2017 court case – DPP v Distill [2017] EWHC 2244 (Admin), – where an Administrative Court ruled that a domestic garden does NOT form part of a “dwelling”.

This means authorised officers may not be able to enter your home, but they DO have the power to enter your land and gardens.

If the Bill’s drafters HAD wanted to exclude the land as well, they could have used “residential land” or “residential property” instead of “dwelling” – but they didn’t.

You also only have to look at the context of the Bill, specifically the way it drastically waters down people’s property rights under the original Act – e.g. See Bill’s repeal of 81(4)(b),(c),(d) and (ea) and amendment of (f).

The Bill also adds a sub-clause to 81(ac) to the Act.  This establishes the basis on which officers can “enter and search land” as:

“for the purposes of ASCERTAINING whether or not a regionally prohibited weed, regionally controlled weed or established pest animal is present or not present on the land.”

Currently officers can only enter if they have “reasonable grounds” for believing a ‘noxious weed’ or pest animal is present.  That protection is removed by the Bill, leaving the door wide open for ‘fishing expeditions’ and other abuses.

The whole Bill sets a terrible precedent for property rights in Australia generally.

As George Washington once said:

“Freedom and Property Rights are Inseparable – you can’t have one without the other”.