Farm Transparency International Ltd v New South Wales  HCA 23 (10 August 2022)
An important recent High Court case has raised a difficult conundrum regarding the public’s “right to know” …
Chris Delforce is the fervent animal rights activist, known for perhaps his most famous animal cruelty documentary, Dominion.
Much of his shocking footage is obtained by trespassing on private farming properties and installing covert recording devices. The farming practices depicted in the footage, while cruel, are usually entirely lawful.
Mr Delforce and his non-profit entity, Farm Transparency International Ltd, wished to continue to obtain such footage and to cause it to be published, hoping to persuade people to want to strengthen animal cruelty laws.
Standing in Mr Delforce’s way is NSW legislation known as the Surveillance Devices Act 2007. Section 8 of that Act makes it an offence, to knowingly install, use or maintain optical surveillance devices if such use involves trespass onto private property carrying a maximum penalty of 5 years imprisonment. Mr Delforce accepted that section 8 was a valid law.
However, Mr Delforce took issue with sections 11 and 12 of that Act. Section 11 made it an offence to publish a recording obtained in contravention of section 8, and section 12 made it an offence to possess such material. He said those provisions ‘gagged’ his ability to expose animal cruelty, albeit, accepting that he could be prosecuted if he contravened section 8.
So Mr Delforce and Farm Transparency International went to the High Court of Australia to bring a Special Case against the state of New South Wales to argue that sections 11 and 12 were unconstitutional because they infringed the implied freedom of political communication in the Australian Constitution.
What is the implied freedom of political communication?
The Australian Constitution does not contain an express right to free speech. It is unlike the Constitution of the United States of America containing the First Amendment right to freedom speech.
But, even that First Amendment right is limited. We have several restrictions on our ability to communicate freely. We have laws against defamation, making misleading and deceptive statements in business, publishing confidential material and hate speech, to name a few.
In Australia, however, we do have a constitutionally protected right to communicate about political matters. Only as recently as 1997, the High Court finally held that this right, while not expressly stated in the Constitution is implied in the Constitution.
The reasoning goes, that if the Australian Constitution expressly enshrines a system of representative democracy, how can that democracy work if the electors are not free to communicate between themselves about political matters? Hence the necessity to imply such a freedom to communicate about such matters.
What did the High Court say about Mr Delforce’s argument?
A majority of the High Court’s seven judges, decided against Mr Delforce and Farm Transparency International.
The Court had to consider whether sections 11 and 12 impermissibly burdened the implied freedom of political communication.
A law, such as sections 11 and 12, will burden the implied freedom of political communication, if that law represents an incrementally greater restriction on our ability to communicate about political matters, than do existing laws.
Sections 11 and 12, in substance, prohibit publications of recordings of lawful acts, if those recordings are obtained surreptitiously whilst trespassing. No other common law or statute law, such as an action for breach of confidence would necessarily prohibit such publications, given that lawful activities on private property are not necessarily confidential. Therefore, all seven judges on the High Court agreed that sections 11 and 12 did burden the implied freedom of political communication.
The next question was whether the burden was impermissible. The choice of the NSW parliament to legislate sections 11 and 12 with the purpose of protecting private property rights was legitimate.
The five judges in the majority held that sections 11 and 12 were appropriately balanced to achieve that purpose, such that the benefit of the laws did not outweigh the burden on political communication. However, according to three of those majority judges (Gordon, Edelman and Steward JJ), this ruling only applies where sections 11 and 12 operate to prohibit the publication and possession of recordings by those who were complicit in a trespass (as Mr Delforce and Farm Transparency International were), and not to third party publishers who were not complicit in the trespass. This is because no third party publisher brought a case for the High Court to consider. Two of the judges (Kiefel CJ and Keane J) in the majority would have extended the ruling to third party publishers who were not complicit in the trespass, but who, as required by sections 11 and 12, knew, or were reckless to the fact that the recordings were obtained by trespass. For those judges, the purpose of the laws was to deter a trespass in the first place, which would be undercut if there remained some incentive to obtain such footage.
The two judges who dissented (Gageler and Gleeson JJ) held that sections 11 and 12 imposed an unjustified burden on the freedom of political communication. The dissenting judges thought that, in their operation, the NSW laws were too blunt an instrument – they operated indiscriminately regardless of the gravity of the information recorded and of the extent to which the people who vote in our democracy and their elected representatives may have an interest in receiving the information. Other states with similar legislation seeking to prevent the publication of recordings obtained by trespassing at least carved out from the prohibition, an exception if publication of the recording is in the public interest.
So that was the difficult conundrum faced by the High Court – either undermine the entirely legitimate purpose of the laws, being to protect private property, or risk the public never learning of something they might have an interest in knowing.