This is an edited version of a presentation I gave to the Journal of Environmental Law ‘Environmental Law and Populism’ Workshop held at The University of Oxford in November 2019.
My geographical focus today will be the Murray Darling Basin, a geography that encapsulates five sub national jurisdictions and is co-managed under referred legislative powers by the Commonwealth government and state and territory governments under the Water Act 2007 (Cth) (‘Water Act’) and the Murray Darling Basin Plan.
I am going to talk to you about the rise of a populist discourse in Australia centred on the interests of the farmer. It is a discourse that has become especially evident over the past 12 months following fish deaths in the Darling River in New South Wales (‘NSW’) and the political declaration of drought in the eastern Australian states. It is grounded in rural unrest about the allocation of water rights, and has been deployed to resist legislative or political action to address the climate catastrophe enveloping Australia. And so for these reasons, I view the ‘farmer interests’ discourse as an environmental discourse.
What I hope to highlight is that the problems that fomented the discourse (especially climate change and water mismanagement) are not those problems being addressed by the laws that are being supported by the discourse. At least for the time-being.
The discourse is present in news media, notably the Australian tabloid press and the mostly Sydney-based right-wing radio stations, in posturing by politicians within and outside of parliaments, and it has more recently been mocked and satirised on social media through the use of memes.
The environmental discourse has been used to achieve a political response this year, especially in the form of drought relief for farmers – a controversial policy because many of the farmers receiving assistance to keep them farming face a reality of prolonged dry periods and some within the industry are arguing that the time is right for some farmers to transition off barren lands.
The discourse has been used to support legal changes in 2019 – including in NSW: laws that diminish native vegetation controls, that alter the law of nuisance for agricultural production and that further criminalise on-farm protests by animal rights activists, and federally in the attempts to regulate milk prices by the fringe and conservative populist party: Pauline Hanson’s One Nation Party.
What is an environmental discourse and how is it relevant to populism?
My understanding of what environmental discourses are is informed by the 1990s scholarship of Hajer and Dryzek. Environmental discourses are a ‘shared way of apprehending the world’ or an ‘ensemble of ideas, concepts, and categorizations’ which are given meaning through their reproduction and repetition and the political ecology within which they are struck. They bring together adherents, into discourse coalitions, in order for them to interpret information and stories about the environment. Although the discourses and their coalitions of supporters shed or disguise complexity and are oftentimes lacking in coherence.
Discourses comprise ‘vocabularies of motive’, language, metaphors, analogies, clichés, catch phrases, and concepts and structures of bias. They are condensed into often simple, succinct, and agreeable storylines within which actors are able to attach their disparate views, values, and interests. They become ‘world views’, emblematic and ritualised and infiltrate common language in a way that shape and highlight particular knowledge.
Elsewhere Chris Hilson has written of the presence and role of narrative in climate litigation in engendering a populist frame and movement, and he has contrasted the presence of narrative, storylines and discourses within environmental jurisprudence and law making, and encouraged viewing these prisms of language and positionality as drivers for legal action and involvement.
What’s more, as Hilson writes in preparation for this workshop, ‘populism appeals to emotions over rationality’ and this emotion is often wrapped up in narratives of experiences and feelings. There is within populist movements, says Hilson, an appeal to the ‘will of the “real people’ and as Fisher notes a ‘telling of simple stories’: especially of ‘the people against the elite, and [of] the “real” people’: like Australia’s farmers: sometimes referred to as the ‘real Australians’, including by Australian politicians. Preston similarly writes of sloganeering and propagandising driving policy and politics. I hope to colour these perspectives today.
The fish kills
As I have noted, I am interested in the rise and power over law and policy of the ‘farmer interests’ environmental discourse. In the context of the recent Australian popular interest in the wellbeing of the bush, and the re-energisation of populist political parties I trace the farmer interest discourse to the widespread community shock about the fish kills – an environmental catastrophe – in the Darling River around Menindee from 11 months ago.
Of course, there is a strong poetic narrative, dating to colonial times, of Australian ‘bushmen’ and farmers being central to the Australian identity. And while that narrative certainly helped consolidate the discourse, other events have shaped the discourse for present social media times.
A video in the aftermath of the first fish kill in December 2018 (featuring a farmer holding a dead Murray cod who had previously brought a High Court challenge over the diminution of his business’s water rights) went viral triggering much political anxiety. Both the federal government and, unconventionally, the federal opposition initiated inquiries into the cause of the deaths to both qualm and exploit the community shock and anger.
Scientists identified mismanagement of water allocations, including over-allocation to high water users, and low environmental flows arising from the NSW government policies of water release as the primary causes. An earlier corruption scandal, leading to a Royal Commission by the state of South Australia, was the result of water users in NSW taking greater volumes of water than they were allocated or that they were entitled having earlier benefited financially from claiming water use efficiency dividends. All of this occurred according to the terms of the federalist Murray Darling Basin Plan under the watch of the NSW government, meaning that environmental and downstream flows were reduced.
And then there was the contribution of a changed climate, exceptionally wet then dry and hot weather conditions; with the government’s investigators explaining that ‘climate change amplified these conditions and will likely result in more severe droughts in the future’ and with it more fish kills.
The NSW government saw the effect of the community anger over its role in water mismanagement in the electorates that contain the Darling River and adjacent rural centres in the March 2019 state election, with populist parties, most notably the Shooters, Fishers and Farmers Party with its policy platform of reform to water law and policy, and independents, recording large swings to them as voters deserted the rural conservative National Party.
The federal government, despite avoiding the same electoral damage as its NSW conservative counterparts and being returned to power thanks it claims to the votes of the ‘quiet Australians’ has, however, experienced community anger as drought conditions have worsened in NSW in particular, and it has refused to revisit its market-based water policy.
Communities further downstream in the Murray Darling Basin have been agitating for some of the dedicated environmental flows under the water plan and Water Act to be reallocated to agricultural purposes, and for a reallocation of water from high use, high profit, principally export cropping – think cotton and almonds for instance, to a larger number of farmer interests, particularly those who are a part of the local food supply system, and to dairy farmers.
The federal minister, David Littleproud, whose extended family was implicated in water allocation manipulation, has borne the brunt of farmer and rural constituency wrath for the government’s inaction.
The national discourse
The broader and generally urban community, supported by commercial media, especially talk back radio and breakfast television, and supermarket chains, has organised a charitable response. Australians have been urged to buy bales of hay for farmers (that was on my opening slide), to donate dollars at the supermarket till, to adopt a farmer. Governments are claiming to be thrifty with spending and focussed with government policy such that immediate farmer interests are prioritised – in terms of social welfare and drought policy.
And such commentary has been mimicked on social media. The Australian farmer has become the cause of populism to such an extent that it is now being mocked through memes on social media.
Among other figures of mockery has been the Prime Minister whose government has resisted calls for policy or legal responses to address the causes of the experience of drought – climate change and water allocations. Turning to prayer and government financial assistance; assistance characterised as too little by the populist class. Yet to challenge the discourse – especially to raise climate change as part of the problem is to be dismissed as taking advantage of the predicament faced by Australian farmers; and to be identified as no longer one of the government’s preferred obedient quiet Australians.
While laws to address the core challenges faced by those on the farmlands have not (yet, perhaps) eventuated from the farmer interest discourse, other laws and legal manoeuvres have arisen from the discourse, perhaps opportunistically or by design. I want to note three legal changes where the discourse was deployed in the speeches and commentary supporting the proposed legislation.
The Native Vegetation Act amnesty
First, in the decision of the NSW government to direct its Department of Planning, Industry and Environment which regulates native vegetation protection to cease its investigation, penalisation and prosecution of suspected unlawful land clearing undertaking under laws that the NSW parliament repealed in 2017 – the Native Vegetation Act 2003 – and which it replaced with a more permissive and self-regulated system of native vegetation management on private lands. The Department is now required to work with landholders to achieve compliance with Codes.
The Minister responsible for agriculture, not the Minister responsible for the environment, explained his government’s decision to a NSW farmers conference:
“I don’t want to see farmers who undertook activity, which if they did it today it would be completely legal, prosecuted for activity that they did 10 years ago that might’ve been illegal at the time”.
Yet it has since been reported that many of the investigated parties were not farmers as imagined or recalled – dust covered and Akubra hat wearing; rather large industrial cotton agribusinesses. The distinction, however, was not drawn out in the populist demands for the change led by the Sydney radio station 2GB.
Radio personality Ben Fordham campaigned for this legal-policy change under a promise of fighting for Aussie farmers facing “bankruptcy” from action by government ‘bullies’ and from “being forced off their land because of the aggressive tactics” of the Department. Farmers, already doing it hard, weren’t getting a fair go. Lost in the hyperbole of concern and victim making was an acknowledgement that a native vegetation officer was shot dead five years ago doing his job enforcing these laws.
The Right to Farm Bill 2019 (NSW)
Which is awaiting royal assent having passed both houses of the NSW parliament, is the second and most notable legal change supported by the farmer interests discourse this year.
The Act achieves two primary but disconnected goals. First, it creates higher penalties up to three years for trespass onto agricultural land (compared to other private lands) and creates new offences of organising – directing, inducing counselling – such trespass activities. These are legal changes directed towards animal rights protesters by the least quiet and most unAustralian of Australians at the moment – vegan extremists.
These laws add to other laws passed by the Commonwealth parliament this year that create crimes of using a carrier service to organise trespass or property damage on agricultural land.
Second, it creates a defence to claims of private nuisance where what would otherwise be an ‘unreasonable interference’ has occurred on commercial agricultural land (or farm affiliated land – including land used for rodeos) consistent with other laws, primarily planning laws, for at least one year, and has not been undertaken negligently. This is the second version of the US Right to Farm statute, following Tasmania in the 1990s.
Adam Marshall, Minister for Agriculture and Western NSW in introducing the bill explained how tough our farmers are it doing in the face of drought, and proclaimed that the bill:
enshrine[d] in law a farmer’s right to farm their land, to grow the food and fibre to feed and clothe [us and would tackle] on-farm trespass … and the questioning by vegan vigilantes and other ideologically motivated groups of a farmer’s right to undertake lawful activities.
The Protecting Australian Dairy Bill 2019
While defeated in the Senate by 30-31 votes this month, and which sought to include a base minimum price for milk for each dairy season, is worth noting because it showed the discourse on display and used against the government who continues to be a key figure in the discourse coalition in an ongoing battle over milk pricing policy and the power imbalance between Australia’s supermarket duopoly and dairy farmers.
In introducing the bill and also in the media, Pauline Hanson, populist Queensland Senator, pleaded for her proposed law to be passed for the people of the nation – embodied in the Australian dairy farmer:
We have to stand up for all the dairy farmers. … I call on everyone in this parliament: represent the people of this nation—the dairy farmers, who are on their knees and going under. All they want is a fair price for their milk, and the public will pay for it.
The climate change activist farmers
I will finishing by mentioning that while this discourse has not been used to address the kinds of existential problems facing Australian farmers through law and policy, it has given a voice and power and space for discussion by farmers. And so it might present another avenue, perhaps more conciliatory, less disruptive or threatening to government to achieve legal and policy change of the sort required merely for Australia to fulfill its international targets and meet other nations in the challenge to avert a climate crisis.
The Guardian newspaper has a journalist producing regular stories about climate change from the bush framed through the experience of the farmer, rural and agricultural policy think-tanks have raised concerns about government inaction on climate change and the new grouping of Farmers for Climate Action, led in part by one of Australia’s most effective young climate activists and thinkers, Anna Rose, is reshaping the image of the modern and the future farmer and articulating their understanding of the climate policy needs required to keep them on the land and Australia the land of sweeping plains and bushwomen.
 The National Farmers Federation is urging exit packages: Ean Higgins, ‘Call for “exit packages” for drought-hit farmers’, 23 October 2019. The Australian. Editorial, ‘Structural solution to the farm “crisis”’, 24 October 2019. Australian Financial Review.
 Marteen Hajer, The Politics of Environmental Discourse: Ecological Modernization and the Policy Process (Oxford, 1995).
 John Dryzek, The Politics of the Earth: Environmental Discourses (Oxford, 1997).
 Dryzek, 8.
 Hajer, above n 2, 44.
 Dryzek, above n 3, 8.
 Hajer, above n 2, 45.
 Hajer, above n 2, 44.
 Ray Kemp, ‘Why not in my backyard? A radical interpretation of public opposition to the deep disposal of radioactive waste in the United Kingdom’ (1990) 22 Environment and Planning A 1239, 1244.
 Marteen Hajer, ‘Discourse coalitions and the institutionalization of practice: the case of acid rain in Britain’ in Frank Fischer and John Forester (eds), The Argumentative Turn in Policy Analysis and Planning. (Duke, 1993) 43.
 Hajer, above n 2.
 Chris Hilson, ‘Law, courts and populism: climate change litigation and the narrative turn’ Chapter 5 in Susan M. Sterett and Lee D. Walker (eds), Research Handbook on Law and Courts (Edward Elgar, 2019).
 Chris Hilson, ‘Climate populism, courts and science’ (2019) 31 Journal and Environmental Law 395.
 Elizabeth Fisher, ‘Unearthing the relationship between environmental law and populism’ (2019) 31 Journal and Environmental Law 383.
 Cultivating a nation: Why the mythos of the Australian farmer is problematic‘ The Conversation, Littleproud meets with parched farmers hoping for rain‘ Countryman, 28 March 2019.
 Brian Preston, ‘The end of enlightened environmental law’ (2019) 31 Journal and Environmental Law 399.
 See the 1890s work of Banjo Patterson, for example. Mayes, above n 15.
 Arnold v Minister Administering the Water Management Act 2000 240 CLR 242.
 Paige Cockburn and Kevin Nguyen, ‘Mass fish deaths at Menindee sparks viral video as Minister receives threats’ ABC News,
 See the letters to the editor, Sydney Morning Herald, 11 January 2019; Cameron Gooley, ‘Menindee rotting fish clean-up to begin next week‘ ABC News,
 NSW Government, Department of Primary Industries, Fish Death Interim Investigation Report: Lower Darling River Fish Death Event, Menindee 2018/19 (January 2019); Australian Academy of Science Expert Panel, Investigation of the causes of mass fish kills in the Menindee Region NSW over the summer of 2018–2019 (2019)
 Anne Davies, ‘Damning Murray-Darling report says NSW ‘well behind’ on water-sharing plans‘ The Guardian, 15 January 2019; Bret Walker SC, Murray-Darling Basin Royal Commission Report (January 2019).
 Shooters Fishers and Farmers Party (NSW), SFF strategy on Murray Darling Basin water management. The party’s principle environmental policy position is the rejection of protected areas for environmental preservation.
 Peter Hannam, ‘‘On their knees’: Drought and nuts blamed for ‘decimating’ food sector’ Sydney Morning Herald, 25 October 2019.
 Kerry Brewster, ‘One of Queensland’s largest irrigators expected to be charged with fraud‘ The Guardian, 8 April 2018.
 Warwick Long, ‘Effigy of Federal Water Minister David Littleproud floats toward SA in Murray-Darling Basin Plan protest‘ ABC News, 20 September 2019.
 Peter Lewis, ‘There is growing empathy for those on Newstart. The dynamics of welfare politics are changing‘ The Guardian, 13 August 2019.
 Viki Gerova, ‘Thousands Sign Petition To Scrap Sydney’s NYE Fireworks And Donate Funds To Fire Relief‘ 10 Daily, 17 November 2019.
 Michelle Grattan, ‘View from The Hill: Alan Jones v Scott Morrison on the question of how you feed a cow‘ The Conversation, 15
 Marshall takes stick to old veg laws, reviews all old orders‘ The Land, 1 August 2019.
 Anne Davies, ‘NSW farmers granted amnesty for illegal land-clearing‘ The Guardian, 1 August 2019.
 Davies, above n 32.
 2GB, ‘Ben Fordham’s fight to save Aussie farmers from bankruptcy‘ 2GB, 21 May 2019.
 Anne Davies, ‘Farmers prosecuted for land clearing allege former NSW minister gave them green light‘ The Guardian, 17 October 2019.
 Kathleen Ferguson and Jennifer Ingall, ‘Native Vegetation Act amnesty angers partner of slain environment officer Glen Turner‘ ABC News, 2 August 2019.
 The Criminal Code Amendment (Agricultural Protection) Act 2019 (Cth) creates offences of:
- Using a carriage service for inciting property damage, or theft, on agricultural land; and
- Using a carriage service for inciting trespass on agricultural land
 The ‘defence’ was originally drafted as:
No action lies in respect of nuisance by reason only of the carrying out of a commercial agricultural activity if:
(a) the activity is carried out lawfully, and
(b) the activity is not carried out negligently, and
(c) the activity is carried out on agricultural land, and
(d) the land on which the activity is carried out has been used for the purposes of agriculture for a period of at least 12 months.
It was amended at the initiation of the Shooters Fishers Farmers Party:
No action lies in respect of nuisance by reason only of the carrying out of any of the following activities if the activity is carried out lawfully and not negligently and that type of activity has been carried out on the land for at least 12 months:
(a) a commercial agricultural activity,
(b) an activity carried out for the purposes of any of the following:
(i) any business or undertaking in which cattle, poultry, pigs, goats, horses, sheep or other livestock are kept or bred for commercial purposes (for example, a dairy, saleyard or feedlot),
(ii) a business or undertaking for the commercial production of products derived from the slaughter of animals (including poultry) or the processing of skins or wool of animals, including abattoirs, knackeries, tanneries, woolscours and rendering plants,
(iii) a business or undertaking for forestry (including timber mills) or aquaculture,
(iv) a show or competition involving livestock (including a rodeo).
 Primary Industry Activities Protection Act 1995 (Tas).
 Adam Marshall, NSW Legislative Assembly Hansard, 17 September 2019 (Second Reading Speech). The Minister noted:
Our farmers are doing it tough, as every member of this House knows, and the amendments to the Inclosed Lands Protection Act 1901 and the new Right to Farm Bill 2019 are part of a broader suite of initiatives by the Government. We all know how hard the drought is for all communities and farmers in rural, remote and regional New South Wales. That is why in July 2019 the Government announced an additional $1.1 billion in drought support. The acts of trespassers can undo the great work that our farmers do every day to protect and maintain the world-class biosecurity regime we have in New South Wales.
 Marshall, above n 40.
 Susan McDonald, Senate Hansard, 11 November 2019 (Second Reading Debate). National Party senator for Queensland, McDonald claimed:
There is no more important industry in Australia than agriculture in growing the food and fibre that feeds the nation and feeds a good part of the world. Dairy is indeed an important part of that industry. They are doing it as tough as anybody at this moment—as tough as pork producers, as tough as feed lotters and as tough as anybody who is having to pay a dollar a kilo for feed, who are struggling to get water in the face of a deep drought. But these are not things that can or should be solved by this legislation.
 The New Daily, ‘Pauline Hanson weeps at plight of dairy farmers‘ The New Daily, 18 October 2019; Matt Coughlan and Daniel McCulloch, ‘Pauline Hanson can’t milk support for dairy bill‘ The New Daily, 11 November 2019.
 Pauline Hanson, Senate Hansard, 11 November 2019 (Second Reading Speech).
 Gabrielle Chan, ‘For farmers climate change is the headline to our lives, but McCormack’s Nationals avert their gaze‘ The Guardian, 11 November 2019.
 Australian Farm Institute and Farmers for Climate Action, Change in the air: Defining the need for an Australian agricultural climate change strategy