Nathanson v Minister for Home Affairs [2022] HCA 26 (17 August 2022)

Intro:

The issue in this appeal is whether procedural unfairness by the Administrative Appeals Tribunal ("the Tribunal") in the course of hearing the appellant's application for review of a decision to refuse to revoke the mandatory cancellation of his visa involved jurisdictional error. Following a hearing conducted by the Tribunal, the Tribunal affirmed the decision to refuse to revoke the visa cancellation. As the Courts below recognised, the Tribunal's error in failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal's decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome. The appellant bore the onus of demonstrating that the denial of procedural fairness was material in this sense.

Applying these principles, the appellant discharged his onus of demonstrating that the Tribunal's denial of procedural fairness deprived him of a realistic possibility of a different outcome. That realistic possibility was demonstrable from the record of the Tribunal's decision.

Facts:-

The appellant, a citizen of New Zealand born in Zimbabwe, arrived in Australia in 2010 when he was 26 years old. In 2013, the appellant was granted a Class TY Subclass 444 Special Category visa. In 2018, a delegate of the respondent Minister cancelled that visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) required the Minister to cancel the visa because the Minister was satisfied that the appellant did not pass the "character test" in s 501(6) of the Act and because the appellant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for offences against laws of the Northern Territory. The particular offences that led to cancellation of the appellant's visa were depriving a person of personal liberty, aggravated assault, stealing and driving a vehicle in a dangerous manner. The objective circumstances of the offences were serious, including in that: the victim was a seventy year old man; the attack was unprovoked and the victim was deprived of his liberty for almost 12 hours during which the appellant threatened the victim's life; and the offending involved the victim in a high speed car pursuit with police. For the offences, the appellant had been sentenced to a total effective period of imprisonment of two years and six months.

On 10 January 2019, a delegate of the Minister decided not to revoke the mandatory cancellation of the appellant's visa, pursuant to s 501CA(4) of the Act. In making that decision, the delegate was required to comply with the ministerial direction, made under s 499 of the Act and known as "Ministerial Direction 65". Ministerial Direction 65 required the delegate to have regard to a range of considerations, set out in Pt C of the Direction, in exercising the relevant discretion. The considerations included three "primary" considerations labelled in the Direction as: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and expectations of the Australian community. In addition, the Direction specified that "other" considerations were required to be taken into account where relevant. The Direction specified, non-exhaustively, five "other" considerations which were labelled: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed. The Direction explained each of these considerations and, in several instances, specified factors required to be considered in addressing the relevant consideration. The Direction relevantly stated that: both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa; primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations.

As permitted by s 500(1)(ba) of the Act, the appellant applied to the Tribunal for a review of the delegate's decision. In dealing with the application, the Tribunal was required to stand in the shoes of the original decision maker but having regard to the state of affairs as it stood at the time of the Tribunal's decision. Relevantly, the Tribunal was required to ensure that the appellant was given a reasonable opportunity to present his case.

On 28 February 2019, Ministerial Direction 65 was replaced by a direction known as "Ministerial Direction 79". Ministerial Direction 79 was identical to Ministerial Direction 65 in most respects. However, a significant difference was the inclusion in Ministerial Direction 79, by para 13.1.1(1)(b), of the following factor for consideration in assessing the nature and seriousness of the non-citizen's conduct:

"The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed."

The appeal to this Court proceeded on the basis that the Tribunal was required to act in accordance with Ministerial Direction 79. It was not suggested that the appellant might have had any accrued right to consideration of his application to the Tribunal in accordance with Ministerial Direction 65 and that question is not considered further. It is common ground that the appellant was not put on notice of the significance of this principle for the Tribunal's review until the Minister's closing submissions at the Tribunal hearing on 21 March 2019. There is no suggestion that the appellant had ever been charged with or convicted of any domestic violence offence and the delegate had not mentioned domestic or family violence in their statement of reasons for deciding not to revoke the mandatory visa cancellation.

The appellant was generally aware that allegations of domestic violence were relevant to the Tribunal's review. The Minister obtained under summons two police reports of family violence involving the appellant in 2012 and 2016. The appellant was aware of these reports prior to the Tribunal hearing and there was no suggestion of procedural unfairness in their use at the hearing. Seemingly intended to respond to the police reports, the appellant submitted to the Tribunal a letter of support from his wife dated 5 March 2019, in which she referred to two occasions on which she had reported the appellant to the police. However, the letter did not say anything specific about the incidents that led to the reports or express any views about whether the incidents were likely to be repeated. It is fair to say that the letter was principally concerned with the interests of the appellant's family which, the wife argued, would be best served by permitting the appellant to remain in Australia.

At the Tribunal hearing, the appellant represented himself. Early in the hearing, the Tribunal member noted that she was considering the application under Ministerial Direction 79. The Tribunal member gave the appellant a copy of Ministerial Direction 79 with red markings to identify changes from Ministerial Direction 65. She said that there were "only minor changes to the direction" and further commented that "[m]ost of those changes relate to how we treat crimes where women and children are involved, and with respect to the conviction history I have for you in front of me, I think they're of minor relevance, those changes. That is, mostly relevance [sic] to where the applicant has been charges [sic] in relation to convictions and offences in relation to women and children." The solicitor appearing for the Minister at the Tribunal hearing did not raise any issue concerning these observations.

The appellant then gave some evidence on his own behalf, after which the Minister's solicitor made brief oral opening submissions. The Minister's solicitor stated the Minister's contention that the appellant had been convicted of many serious crimes and "there's also evidence of serious behaviours that should be of concern to the Australian community". The solicitor did not specify the nature of the "serious behaviours" and he did not say anything to indicate that, by reason of the new language in Ministerial Direction 79, any domestic or family violence was to be viewed very seriously by the Tribunal in conducting its review.

The Minister's solicitor then questioned the appellant, including about the two police reports of family violence involving the appellant. The appellant made several admissions, although he also gave evidence to the effect that he had no real recollection of either incident. Then, in closing submissions, the Minister's solicitor contended that the appellant had been involved in violent conduct against his wife that was "extremely serious conduct, especially having regard to the new directions in Directions [sic] 79 that any violent conduct against a female is serious, regardless of the sentence imposed".

The Tribunal took no steps to draw to the appellant's attention that the Minister had raised a new issue based on para 13.1.1(1)(b), namely, that the evidence of domestic violence was to be viewed "very seriously" in assessing the nature and seriousness of the appellant's conduct for the purpose of the primary consideration of protection of the Australian community. Nor did the Tribunal take any steps to give the appellant any opportunity to address the new issue. The appellant did not address the new issue in his closing submissions.

Ultimately, the Tribunal found that its findings regarding the protection of the Australian community and the expectations of the Australian community weighed strongly in favour of the Tribunal refusing to revoke the visa cancellation. It formed the opinion that the "primary obligations" of protection of the Australian community and the expectations of the Australian community outweighed the other considerations that were in favour of revocation of the decision to cancel the visa, namely, the best interests of minor children, the strength, nature and duration of the appellant's ties to Australia and the extent of the impediments to the appellant if he were removed from Australia. The Tribunal concluded that, having regard to all of the relevant considerations in Direction 79, it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of the appellant's visa.

Issue:-

a) Did the Tribunal fail to draw the appellant's attention on a new issue raised by the Minister based on para 13.1.1(1)(b), namely, that the evidence of domestic violence was to be viewed "very seriously" in assessing the nature and seriousness of the appellant's conduct for the purpose of the primary consideration of protection of the Australian community?

b) Did the Tribunal fail to give the appellant any opportunity to address the new issue?

Consideration:-

Content and proof of materiality of a denial of procedural fairness

In Hossain v Minister for Immigration and Border Protection, a majority comprising Kiefel CJ, Gageler and Keane JJ enunciated a common law principle of statutory interpretation. That principle is that a statute conferring decision-making authority is "ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance"[. It is well recognised that, generally speaking, legislation should be construed to discourage unnecessary litigation, to reduce wasting time and cost and to preserve the dignity of the law. And, in particular, in relation to the Act, this Court has declined to attribute to the legislation the impractical intention that an error in process, which cannot have affected the outcome of the process, requires that the process be repeated.

In MZAPC, a majority comprising Kiefel CJ, Gageler, Keane and Gleeson JJ explained the evolution of the contemporary understanding of jurisdictional error that supported that principle of interpretation. Their Honours further explained:
"The principle accommodates determination of the limits of decision-making authority conferred by statute to the reality that '[d]ecision-making is a function of the real world' by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no 'practical injustice'[ will deprive a decision of statutory force."

As explained in MZAPC, the materiality of a breach requires consideration of "the basal factual question of how the decision that was in fact made was in fact made". This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined". The burden falls on the plaintiff to prove "on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition".

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

Proof of materiality in this case

This case is analogous to Stead v State Government Insurance Commission. There, the record before the intermediate appellate court showed that the plaintiff's counsel was stopped by the trial judge from submitting that a witness's evidence should be disbelieved. The witness had given evidence that there was no causal link between the plaintiff's personal injury and a motor vehicle accident. In his judgment, the trial judge accepted the witness's evidence and rejected the plaintiff's case on causation. The realistic possibility of a different outcome was demonstrated on the face of those elements of the appellate record of the trial, without any evidence as to what counsel could have said if he had been allowed to complete his submission. Similarly, in this case the only historical facts that the appellant was required to prove appeared from the Tribunal's reasons for decision.

The Minister correctly acknowledged that, in many, if not most, cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, "reasonable conjecture" from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different. The Minister submitted that, because of the "quite particular circumstances" of this case, the appellant was required to adduce evidence of how the question of domestic violence could have been addressed by him or his wife in further material. The "particular circumstances" were said to be that the topic of domestic violence had already been addressed in the evidence to some degree, albeit in relation to a different issue.

Further, the Minister accepted that if, when the Minister sought to rely on the material about domestic violence in connection with the consideration of protection of the Australian community, the appellant had been invited to address that new issue by way of further evidence or submissions, the appellant would have taken that opportunity to address the new issue by leading evidence and/or presenting submissions to the Tribunal.

It may be accepted that, the Minister having raised the issue of domestic violence by the appellant as it affected the best interests of the appellant's children, the appellant had strong reasons to rebut the material before the Tribunal on that issue, to the extent that he could, or otherwise to negate or minimise its significance in relation to that consideration. It may also be accepted that the appellant addressed the issue raised by the Minister by providing the wife's letter to the Tribunal. It is reasonable to infer that the letter was prepared in response to the police reports obtained by the Minister under summons. It may also be accepted that the appellant was afforded an opportunity to address the issue raised by the Minister through cross-examination and questions from the Tribunal at the hearing. Further, it may be accepted, given that the appellant accepted the correctness of the police reports, that it is extremely unlikely that the appellant could have said or done anything to avoid findings that the two incidents of domestic violence described in those reports did occur.

As the Minister put it, had the appellant been afforded procedural fairness, the best he probably could have done was to place the domestic violence incidents in some context that might have persuaded the Tribunal that they were less serious than they appeared from the police reports or otherwise that they should not be viewed "very seriously" in connection with the consideration of protection of the Australian community. The Minister argued that this possibility was immaterial because the incidents, as recorded in the police reports and explored in cross-examination, were objectively serious; the wife's letter already sought to contextualise the appellant's conduct and to stress their mutual commitment to their relationship; and the appellant's case was that he was remorseful for everything he had done and was a "changed man".

The Minister's argument must be rejected. As explained in MZAPC, it is necessary to consider how the Tribunal's decision was in fact made. That decision was made by weighing the range of considerations in Ministerial Direction 79 that were of relevance to the appellant, following an evaluation of the appellant's history, circumstances and prospects as appropriate, in order to make findings about each of those considerations. In that context, additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence could realistically have affected the Tribunal's evaluative fact finding concerning the nature and seriousness of the appellant's conduct and, ultimately, the outcome of the Tribunal's review. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair. As a matter of reasonable conjecture, and as Wigney J reasoned, the appellant may have been able to present evidence on his own behalf or from his wife, and to make submissions that could have led to a different characterisation by the Tribunal of the nature of the appellant's offending. That evidence and those submissions may have provided more detail about the domestic violence incidents, placing them in the relevant context or providing relevant detail. The possibility that the appellant could have presented more to the Tribunal about how the incidents were to be evaluated could not be foreclosed by what was already before the Tribunal.

Conclusion:-

The appeal should be allowed and the first respondent should pay the appellant's costs of the appeal. Orders 1 to 4 of the Full Court of the Federal Court of Australia dated 9 October 2020 should be set aside and, in lieu thereof, it be ordered that: (1) the appeal to the Full Court of the Federal Court of Australia be allowed; (2) the orders made by Colvin J dated 18 October 2019 be set aside and, in lieu thereof, it be ordered that: the application for review be allowed; the decision of the Tribunal dated 4 April 2019 be set aside; the application be remitted to the Tribunal to be heard and determined according to law; and the first respondent pay the applicant's costs; and (3) the first respondent is to pay the appellant's costs of the appeal to the Full Court of the Federal Court of Australia.

Farm Transparency International Ltd v New South Wales [2022] HCA 23 (10 August 2022)

Intro:-

The question of law ripe for judicial determination on the facts set out in the special case is whether the prohibitions on the publication and possession of a visual record in ss 11 and 12 of the Surveillance Devices Act 2007 (NSW) infringe the constitutionally implied freedom of political communication in their application to a visual record that has resulted from a contravention of s 8.

Facts:-

The first plaintiff, Farm Transparency International Ltd, is a company and a not‑for‑profit charity which seeks to raise public awareness of animal cruelty and to increase an understanding of the importance of the prevention and alleviation of animal suffering. In doing so it has engaged in the publication of photographs, videos and audio‑visual recordings of animal agricultural practices in Australia, including in New South Wales.

The second plaintiff, Christopher James Delforce, is a director of the first plaintiff and an activist for animal welfare and animal rights. The second plaintiff has participated in the entry onto the property of others to install, use or maintain an optical surveillance device to record the carrying out of an activity on the premises without the consent of the owner or occupier of the premises, which is to say the recordings were obtained through an act of trespass. The second plaintiff's affidavit, annexed to the Amended Special Case ("the ASC"), suggests that the premises were associated with the farming or slaughter of animals and that the recordings obtained were published by the plaintiffs.

At issue in the ASC is the validity of ss 11 and 12 of the Surveillance Devices Act 2007 (NSW) ("the SD Act"), which, subject to certain conditions and exceptions, respectively prohibit the publication of a record of the kind mentioned above, and the possession of such record, where it has been obtained in contravention of provisions of Pt 2 of the SD Act, which in turn would include the circumstances referred to above concerning the second plaintiff's conduct.

It is the plaintiffs' case that ss 11 and 12 effect a significant burden on the constitutionally guaranteed freedom of persons to make known, to the public and to government, practices which involve cruelty to animals. It cannot be doubted that cruelty to animals is an important issue for society and for legislatures such as the New South Wales Parliament, and that persons and groups such as the plaintiffs have sought to achieve changes to laws directed to that issue. At the same time, there has been discussion about the rights of farmers, especially in relation to trespass on farms. The history of policy discussions and legislative actions in New South Wales bears out the attention which has been directed to these topics. They are but one aspect of the broader implied freedom of communication on matters of politics and government.

The legislative purpose of the relevant provisions of the SD Act, which ss 11 and 12 further, is the protection of privacy. They pursue that purpose largely by preventing and deterring conduct which amounts to a trespass on the property of others. This is a legislative choice made by the New South Wales Parliament. The role of this Court is to determine whether, in the pursuit of that purpose, the freedom of political communication, understood more generally, has been impermissibly burdened or restricted. Such a conclusion might be reached where the means chosen to achieve what is, in law, a legitimate purpose, lacks proportionality. That engages the legal analysis required by this Court's decisions in McCloy v New South Wales and subsequent cases.

The SD Act provisions

The SD Act came into force in New South Wales on 1 August 2008, following the repeal of the Listening Devices Act 1984 (NSW). Its purpose is stated by s 2A to be:

"Objects of Act

The objects of this Act are –

(a) to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations, and

(b) to enable law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions, and

(c) to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices."

The focus here is on s 2A(c) and the "privacy of individuals".

Part 2 of the SD Act, headed "Regulation of installation, use and maintenance of surveillance devices", creates a number of offences. Sections 7 to 10 concern the use of surveillance devices to record conversations, activities or information
concerning a person. Sections 11 and 12 concern the publication and possession of records so obtained.

Section 7(1) of the SD Act prohibits the knowing installation, use or maintenance of a listening device to overhear, record, monitor or listen to a private conversation. It is subject to certain exceptions. A contravention of the section is an offence subject to a penalty.

Section 8(1) of the SD Act is most obviously relevant to the facts of the ASC. Section 8(1) provides that:

"A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves –

(a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or

(b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.

Maximum penalty – 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case)."

No challenge is brought by the plaintiffs to the validity of sections 7 to 10. The plaintiffs accept that they are valid laws. The sections the subject of challenge, ss 11 and 12, are in these terms:

"11 Prohibition on communication or publication of private conversations or recordings of activities

(1) A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person's knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.

Maximum penalty – 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2) Subsection (1) does not apply to the following –

(a) if the communication or publication is made –

(i) to a party to the private conversation or activity, or

(ii) with the consent, express or implied, of all the principal parties to the private conversation or activity, or

(iii) for the purpose of investigating or prosecuting an offence against this section, or

(iv) in the course of proceedings for an offence against this Act or the regulations,

(b) if the communication or publication is no more than is reasonably necessary in connection with an imminent threat of –

(i) serious violence to persons or of substantial damage to property, or

(ii) commission of a serious narcotics offence.

(3) A person who obtains knowledge of a private conversation or activity in a manner that does not involve a contravention of a provision of this Part is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened this Part.

12 Possession of record of private conversation or activity

(1) A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part.
Maximum penalty – 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2) Subsection (1) does not apply where the record is in the possession of the person –

(a) in connection with proceedings for an offence against this Act or the regulations, or

(b) with the consent, express or implied, of all of the principal parties to the private conversation or persons who took part in the activity, or

(c) as a consequence of a communication or publication of that record to that person in circumstances that do not constitute a contravention of this Part."

Issue:-

Does section 11 & 12 of the SD Act impermissibly burden the implied freedom of political communication?

Consideration:-

A burden on the implied freedom of political communication

The free flow of communication on matters of politics and government is implied in the Constitution as necessary to the maintenance of the system of government for which the Constitution provides. It is of such importance that a statutory provision which has the effect of burdening it, by restricting or limiting such communication, must be justified. It is sufficient for a law to require justification that it effects any burden on the freedom. The extent of that burden assumes importance in the later process of justification.

The question whether the freedom is burdened has regard to the legal and practical operation of the law. The question is not how it may operate in specific cases, which are but illustrations of its operation, but how the statutory provision affects the freedom more generally.

The defendant properly concedes that, in their operation, ss 11 and 12 may burden the implied freedom. Communications about activities carried out on premises may be political in nature and the provisions prohibit those communications, or the possession of information about those activities for the purposes of those communications. Such communications may include discussions of animal welfare, a legitimate matter of governmental and political concern and a matter in respect of which persons may seek to influence government. That is not to say that ss 11 and 12, as engaged by s 8, are directed to the content of what is published. They are not. They are relevantly directed more generally to records of activities which are obtained by unlawful means using optical surveillance devices.

The process of justification commences with the identification of the statutory purpose. That purpose must be compatible with the system of representative government for the provision to be valid. A justification for a burden will only be sufficient if it is shown that the statutory provision is proportionate to the achievement of its purpose. Since McCloy v New South Wales, including more recently in LibertyWorks Inc v The Commonwealth, proportionality has been assessed by reference to whether the impugned provision is suitable, necessary and adequate in its balance.

Legitimacy of purpose

The plaintiffs submit that a purpose of ss 11 and 12 is to effect a "gag" on discussions about the agricultural practices with which the plaintiffs are concerned. It is correct to observe, as is stated in the ASC, that the expression "farm trespass" has been adopted by the New South Wales Government in recent years to describe a range of conduct that includes persons entering farming properties without consent for the purposes of advocacy and protest. As the ASC records, Select Committees of the New South Wales Parliament have considered the effects of trespass and unauthorised surveillance devices on farmers and farming operations; have considered issues around the effectiveness of animal cruelty laws; and have made recommendations concerning legislative changes. None of these reports are relevant to the SD Act as enacted and its purpose. The plaintiffs' submissions essentially fail to distinguish between an effect of an impugned provision and statutory purpose. It may be that a consequence of ss 11 and 12 is that some reporting of agricultural practices is prevented, at least in cases where the publisher knows of the antecedent trespassory conduct, but that effect cannot be equated with their statutory purpose.

Suitability

The requirement of suitability is not in issue in the present case. There is no dispute that the measures provided for in ss 11 and 12 are rationally connected to the purposes which they seek to achieve.

The burden and its extent

It has been mentioned earlier in these reasons that the extent to which ss 11 and 12 of the SD Act burden the freedom assumes importance in the process of justifying the law. The extent of the burden is relevant in considering the alternative measures which may be employed to achieve the same statutory purpose, and which may be less burdensome in effect. It is also relevant in considering adequacy of balance, where consideration is given to the extent of the burden and the importance of the statutory purpose.

The extent of the burden effected by ss 11 and 12 is not to be assessed by reference to the operation and effect of those provisions alone. The burden effected by the prohibitions in ss 11 and 12 must be assessed by reference to the restraints which the law – understood as the common law, equity, and statute law – already imposes upon a person's ability to publish records of activities obtained surreptitiously and by conduct which amounts to trespass. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly restrict. It is that burden which is to be justified.

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More to the point in the present case is s 8 of the SD Act, a law the validity of which is not challenged. An assessment of the burden effected by ss 11 and 12 must take as its starting point that the law prohibits the making of a record of activities on premises by the use of an optical surveillance device where a trespass is committed in doing so, and that the law imposes a substantial penalty for a contravention of that prohibition. On the other hand, s 8 will not be contravened if a person who is lawfully on the premises, for example an employee, makes a recording.

If the prohibition in s 8 is obeyed, there should be no persons who would become subject to the prohibitions of ss 11 and 12. It is to be assumed that most citizens will be obedient to the law[39]. Nevertheless, ss 11 and 12 add another level of prohibition directed to the communication of a record of activity obtained in breach of s 8. Importantly though, the prohibition applies only where there is conduct constituting a contravention of s 8, which includes trespassory conduct, and where the person publishing the record has knowledge of the circumstances which constitute the offence under s 8. All that is effectively burdened by ss 11 and 12 is the communication of information obtained through specified unlawful means to the knowledge of the person communicating that information. These are significant limitations on the extent of the burden.

Necessity

The test of reasonable necessity looks to whether there is an alternative measure available which is equally practicable when regard is had to the purpose pursued, and which is less restrictive of the freedom than the impugned provision. The alternative measure must be obvious and compelling. The mere existence of another measure capable of achieving the same purpose will not be sufficient for a conclusion of lack of justification. The other measure must be equally practicable. To be equally practicable as the impugned provision, the alternative must achieve the same legislative purpose to the same degree, which is to say it must be possible to conclude that the alternative legislative measure is equally as effective. Where there is a measure which has these qualities, the impugned legislative provision cannot be said to be necessary, in the sense that its choice is rational and therefore justified.

The plaintiffs refer, as alternative measures, to the provisions of: the Surveillance Devices Act 1999 (Vic) ("the Victorian Act"); the Surveillance Devices Act 2016 (SA) ("the SA Act"); the Invasion of Privacy Act 1971 (Qld) ("the Queensland Act"); the Surveillance Devices Act 1998 (WA) ("the WA Act"); and the Surveillance Devices Act 2007 (NT) ("the NT Act"). The Queensland Act may be put to one side. It does not seek to regulate optical surveillance devices and records taken using them. The plaintiffs rely principally upon the Victorian Act and the provision it makes, by way of exception to its prohibitions on knowingly publishing a record of a private activity obtained by use of a surveillance device, for the publication of such a record in the public interest. A similar exception is to be found in the NT Act.

It may be accepted that, generally speaking, the other statutory schemes pursue the purpose of protection of privacy. But the privacy interest to which they refer differs from the SD Act. The Victorian and other statutes are based upon a conception of privacy viewed from the perspective of the parties to a private activity and their personal interests. The SD Act seeks to protect privacy interests in activities conducted on premises as an aspect of a person's possessory rights over their property. It may therefore be concluded that the Victorian and other statutes do not pursue the same purpose when regard is had to the interests that they seek to protect.

It may also be accepted that a purpose of s 8 of the SD Act is to prevent or deter trespassory conduct. Sections 11 and 12 further that purpose. To make those provisions subject to a public interest exception would be inconsistent with the achievement of that purpose, since the exception is likely to have the effect of encouraging persons to unlawfully enter agricultural land to conduct surveillance of activities on it. The observation of a cross-agency working group of the New South Wales Government, in not recommending that a public interest exception be made to the SD Act, was plainly correct.

Moreover, it may be concluded by reference to ss 8, 11 and 12 that the New South Wales Parliament has largely decided where the public interest lies. It has chosen a scheme of regulation of optical surveillance devices where trespassory conduct is discouraged. It is to be inferred that it is the New South Wales Parliament's view that such conduct lies at the heart of the problems associated with the use of surveillance devices and their intrusion into privacy. A public interest exception to publication would fundamentally alter that scheme. It is not possible to conclude that it would operate in the same way or meet its objective. It cannot be said that such a measure would make the SD Act equally efficacious in the protections it seeks to provide.

Adequacy of balance

If, as here, a law presents as suitable and necessary, it is to be regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom.

The protection of privacy interests has long been recognised as a social value which is protected by the tort of trespass. Its importance is obvious. The burden effected by ss 11 and 12 of the SD Act on the freedom, in the pursuit of that purpose, cannot be said to be great. It is significantly limited by the prohibitions affecting only those communications made by persons who know that the records of activities they publish have been obtained by unlawful acts of trespass.

Conclusion:-

The plaintiffs' challenge to the validity of ss 11 and 12 of the SD Act fails.

The plaintiffs should pay the defendant's costs.