Seeking Transparency on the Constitutional Validity in Recording Alleged Animal Rights Abuses
Farm Transparency International Ltd v New South Wales [2022] HCA 23
Summary
The proceeding involved a challenge to the validity of the prohibitions in ss 11 and 12, in their operation with s 8, of the Surveillance Devices Act 2007 (NSW). It was held that the provisions were valid and did not place an unnecessary burden on the implied freedom of political communication.
Facts
The parties to the matter were: the First Plaintiff (Farm Transparency International Ltd), the Second Plaintiff (Christopher James Delforce) as a director of the First Plaintiff, and the Defendant (the State of New South Wales).
The Second Plaintiff filmed alleged animal rights abuses occurring on farms by way of hidden security devices on the property. On retrieving the footage from the hidden devices, the Second Plaintiff would provide the First Plaintiff with footage to publish with the intention of exposing the graphic slaughter of animals on the farming premises. Importantly, by obtaining the graphic footage by entering the farm owner’s property without consent, the Second Plaintiff committed an act of trespass.
Issue
The High Court of Australia (HCA) was asked by the Plaintiffs to consider the validity of ss 11 and 12, in their operation with s 8,1 of the Surveillance Devices Act 2007 (NSW) (the SD Act) on the basis that they impermissibly burdened the constitutional guaranteed freedom of persons to make known, to the public and to government, practices which involved cruelty to animals.2 The HCA viewed this challenge in conjunction with the purpose of the relevant provisions of the SD Act, namely the protection of privacy, and was asked to determine whether the restriction on the implied right to political communication was proportionate to the achievement of this purpose.3
The majority decision
The HCA majority (Kiefel CJ, Keane, Edelman and Steward JJ) sought to determine whether, in the pursuit of protecting privacy, the SD Act had impermissibly burdened or restricted the implied freedom of political communication.4 The majority argued by way of a proportionality test that the protection of privacy interests outweighed the implied right to freedom of political communication when an illegal act (such as trespass) was committed in the exercise of that implied right.5 Perhaps most importantly, the HCA noted that in analysing the constitutional validity of provisions, it would take a ‘cautious and restrained’ approach.6
The HCA went on to say that the restriction of the implied freedom of political communication must be justified and the question as to whether the freedom is burdened has regard to the legal and practical operation of the law.7 The first step in this analysis is the identification of a statutory purpose, followed by an analysis of proportionality.
The HCA was in agreement that the legislative purpose of the SD Act was the protection of privacy, however the minority dissented on the majority’s analysis of the structured proportionality approach. The three questions asked by the HCA majority in this approach were:
Whether the laws anticipated effects are suitable or rationally connected to the legitimate purpose?
Whether there is an alternative, reasonably necessary, means of achieving the same object but with a less restrictive effect upon the freedom of political communication?
If the anticipated effects are suitable and reasonably necessary, whether they are adequate in the balance between the purpose to be achieved by the law and the extent to the burden imposed on the freedom.8
The majority deemed that the requirement of suitability in (1) was not an issue in the present case because the measures provided for in ss 11 and12 were rationally connected to the purposes they sought to achieve.9
In considering (2) and whether there were any alternative measures available, the plaintiffs argued that other statutory schemes existed throughout Australia where the protection of privacy was the main statutory purpose. However, the HCA majority held that the privacy interest of these other acts differed from the SD Act. For example, the Surveillance Devices Act 1999 (Vic) was ‘based upon a conception of privacy viewed from the perspective of the parties to a private activity and their personal interests’.10 This is in contrast to the SD Act that seeks to protect ‘privacy interests in activities conducted on premises as an aspect of a person's possessory rights over their property’.11 Ultimately, the HCA concluded that the Victorian scheme (alongside various other statutes pointed to by the plaintiffs) did not pursue the same purpose when regard is had to the interests that they seek to protect.12
In reference to (3), the Court arrived at the conclusion that ss 11 and 12 of the SD Act did not place too great a burden on the implied right to political communication.13 They found that this was particularly the case where a party is complicit in the record or report being obtained exclusively by a breach of s 8 of the SD Act.14
On the whole, the HCA majority held ss 11 and 12, in the context of s 8, were valid.
It is worthwhile noting that Edelman J (with whom Steward J agreed) arrived at the same conclusion but took a narrower view on the valid operation of ss 11 and 12. His Honour discussed, in obiter, the potential for ss 11 and 12 of the SD Act to be partially disapplied in circumstances where a challenge is brought before the HCA that considers contraventions of ss 7, 9 and 10. Such a possibility was still open on the basis that:
the facts of this case are concerned solely with the operation of ss 11 and 12 of the SD Act based upon a contravention of s 8;
the facts of the case concern the communication or publication of unlawfully obtained information by trespass and those complicit in the trespass, distinguishing the present case from Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd15; and
there has been no finding of any court, nor where there any submissions that established the unlawfulness of any activity depicted in a record that was obtained or might be obtained.
Unfortunately, his Honour did not further delve into what such circumstances might be as these issues were not the concerns of the present matter.16
The minority decision
The minority (Gageler, Gordon and Gleeson JJ) made three key points:
The critical starting point is the legal effect and practical operation of ss 11 and 12, in their operations with s 8. That is a question of statutory construction;
The purpose, legal effect and practical operation of ss 11 and 12 can properly be determined only by detailed reference to the wider legal context; and
The wider legal context includes the existing common law, equity and statute. It is in that wider legal context that ss 11 and 12 have legal effect and practical operation. This analysis identifies the nature and extent of the incremental burden that the sections impose on the implied freedom of political communication. It also establishes that the nature and extent of the incremental burden is not uniform.
Gageler J considered the issue as follows:
The issue is whether it is compatible with the maintenance of the constitutionally prescribed system of government, for the purpose of protecting the privacy of activities on private property, to impose blanket prohibitions on the possession and communication of a visual record known to have been created as a result of a trespass to private property and not otherwise in the public domain.17
Implicit in this is that the purpose of disincentivising contravention of a criminal prohibition can alone be a purpose capable of justifying a law that imposes a burden on freedom of political communication.18
As pointed out by his Honour, within the scope of the freedom is communication of disagreeable or objectionable information from few to many by way of "agitation" for legislative and political change.19 Further, the implied freedom of political communication exists as a structural implication serving to safeguard the interests of the minority, relative to the majority, to ensure that their interests are not simply disregarded because they may call for legislative and political change.20
The dissenting judges considered that the prohibitions imposed a greater burden on political communication than can in all circumstances be justified as appropriate and adapted to the protection of the privacy of activities on private property.21
Commentary
Notwithstanding the absence of a privacy tort in Australia law, the case provides some indication of the HCA’s willingness to protect individual privacy – albeit indirectly. Further, where an unlawful act infringes on an individual’s right to privacy, the implied freedom of political communication cannot be used as a justification for that infringement.
However, the HCA took a narrow view and did not consider circumstances in which a media outlet published the material. It also wasn’t established in the case whether the conduct in the footage was unlawful, meaning that it is still open to question if the HCA would have found differently if the material showed unlawful activity. The case also didn’t address circumstances where a media organisation publishes material and is complicate in the trespass. In this sense the decision, whilst an important one, will only have limited application in the future and leaves many questions unanswered.
The decision does demonstrate the inherent tension in finding the balance between competing human rights. As consumers are becoming increasing concerned with purchasing sustainable products, and by extension supporting sustainable and ethical farming practices, it may be that the HCA will again be called to consider whether the SD Act impermissibly constrains the implied freedom of political communication and how such laws impact media organisations.
The full text of the decision can be found here.
Jarrod Pyne is a solicitor and Cara Burley is a paralegal at Norton Rose Fulbright.