Does Sections 11 & 12 of the Surveillance Devices Act 2007 (NSW) impermissibly burden the implied freedom of political communication?

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.