The Place of Law in the Australian Agricultural Industry

As we continue through the 2018 Essay Competition winners, we move to Jordan Soresi’s excellent work on connecting the importance of law and agriculture. This category was supported by Bailiwick Legal – a fantastic agricultural-focused legal firm in WA, who have also signed on to support our 2019 competition too. Read on to discover the important connection between law and agriculture.

‘There are no areas in life which are outside of law’

Aharon Barak

This quote by Aharon Barak aptly describes the ability of the law to permeate every aspect of society. The agricultural industry is no exception. Indeed, this essay will argue that there are opportunities for law to improve and grow the industry. Firstly, it will present ways in which legal theories can and are being applied to agricultural practice. It will then argue that the law can boost productivity and sustainability. Finally, it will show that better incorporating law into agriculture can help ensure global food security.

Legal Skills and Theories
There are opportunities to apply legal theories and skills to agriculture. The very existence of agricultural law as a discrete area evidences this. In agricultural law, theories of property, contract and torts reach a crossroads. Fundamentally, these legal skills are necessary in order to protect private property rights and ensure no one is illegitimately encroaching on one’s space; to ensure contractual obligations are fulfilled and discharged adequately; and to provide remedial avenues where there is no formal legal
relationship. In addition to this, it is through law that the State regulates agricultural practice. Given the absolute importance of agriculture as a source of food, legal regulations are necessary to outline requirements of biosafety and –security.

Sustainability and Productivity
Greater legal involvement in agriculture can enhance productivity and sustainability in a number of ways. It can improve sustainability through the enhanced regulation of animal welfare. The current state of regulations is a patchwork of inconsistent standards, which lack scientific grounding and transparency. Furthermore, they manifest an inherent conflict of interest. These standards are headed by government departments, which are in charge of both protecting animal welfare and physically growing the industry. Ultimately, the law can assist and resolve these issues in several ways. The Productivity Commission has suggested the creation of an Australian Commission for Animal Welfare. This would act as an independent statutory agency, which would be in charge of
developing national standards and could develop clear objectives through transparent processes. The creation and maintenance of this proposed body, and its own development of evidence-based standards, are inherently legal in nature. The law is well versed in the establishment of such bodies and in the writing of their quasi-legislative materials. Thus, legal intervention would facilitate and enhance the sustainability of animal welfare in agriculture. Australia can develop a more productive agriculture industry through a greater emphasis on contract law in the space of new technologies. One example of this potential is seen in the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill.

Prior to the Bill’s enactment, large data and agribusiness companies would commonly enter standard-form (i.e. one-sided or non-negotiable) terms of agreement contracts with farmers over the use of digital farming technologies. Being nonnegotiable and often containing terms that were not readily accessible or difficult to read, there was a manifest imbalance of power between the contracting parties. The new law is intended to protect small businesses from unfair contractual terms.

Wiseman posits that it will simultaneously protect smaller farming businesses. In doing so, contracting farmers will have more control over the data being collected and better understand where it goes. This should encourage the farmers to work with data companies more enthusiastically, and equally to use new technologies. In turn, such technologies inevitably improve efficiencies and ultimate business productivity. There is also potential for competition law to improve productivity. Producers in the agricultural supply chain are particularly susceptible to power imbalances because of vulnerabilities relating to perishable produce, climatic variation and limited infrastructure. This is exacerbated by the highly concentrated nature of the Australian market. By discouraging large companies with a lot of power from unduly interfering in the market, competition law works to improve efficiencies. Indicative of this are the Harper Review recommendations, some of which were enacted in 2017. The reformulation of s 4613 to include an ‘effects’ test, for example, is directed at making it easier to address market power imbalances and empowering small producers to confront multinationals corporations. Through robust competition law, efficiencies and productivity can be boosted in the industry.

Food Security
Greater legal involvement in agriculture worldwide can contribute to ensuring food security. This is because there is a strong correlation between the law and food security. In order to have a sustainable farm and grow food for themselves consistently, the world’s poorest people must be able to depend on agriculture as a viable and reliable source of income. In order to depend on their land, such farmers must have secure land rights, which equate to enforceable private property rights. This land security can only be achieved through the rule of law. After all, without it, governments can arbitrarily and illegitimately seize land. This leads to uncertainty and means that the poorest cannot use their land in a consistent and reliable manner to sustain themselves. Self-evidently, once someone has secure land rights, they can feel comfortable accessing and controlling their land. This empowers them to grow their own food and use that to generate income, some of which can be re-injected into the process to continue a sustainable cycle.

In addition to being capable of enforcing land rights, governments can use the law to create further frameworks, which support and improve their profitability. An example of this is a legal framework that compensates smallholder farmers and encourages growth. Encouraging people at the grassroots levels of society to partake in the lawmaking process also encourages knowledge of the rule of law to make the above
outlined process a sustainable reality. Global food security is innately tied with the rule of law. In theory, by strengthening the latter, the former can consequently be achieved.

The agricultural sector is essential to Australian society. Improving its efficiencies, productivity and sustainability is a long-term challenge. One way this can become reality is by engaging the law. When considering agriculture globally, it is apparent that the law also has a significant part to play in securing food for the future.

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