Cat got your tongue? Free speech, democracy and Australia’s ‘ag-gag’ laws

Abstract

In recent years Australian governments have proposed, and enacted, ‘ag-gag’ laws which extend the criminalisation of peaceful, non-violent activities such as trespass to deter animal protection advocates from obtaining information about animal welfare, information that is not obtainable in other ways and that contributes to public deliberation around an important policy issue. This article asks two questions. First, if a speaker engages in non-violent, peaceful, but illegal activities, such as trespass in order to obtain information that is important to democratic deliberation, can this be justified from the perspective of free speech theory? Answering this question in the affirmative, we then analyse the contours of proposed, and new provisions in Australian law designed to extend the criminalisation of such activities. We conclude that since the impact on freedom of speech of such provisions is excessive, governments should be mindful of their free speech obligations when considering, and enacting, such laws.