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(Farm Transparency International Ltd v New South Wales  HCA 23)
The provisions of the Surveillance Devices Act 2007 (NSW) (the SD Act) that prohibit the possession, communication, or publication of records or reports of the carrying out of lawful activities are valid and do not impermissibly burden the implied freedom of political communication, at least where they apply to a person who was complicit in obtaining the record or report in breach of s. 8 of the SD Act.
Farm Transparency International Ltd is a non-profit animal protection charity that agitates and advocates for political and legal changes to animal agricultural practices and animal welfare standards, with the objective of ending modern farming and slaughtering practices.
Farm Transparency's Director, Mr Delforce, trespassed onto farm property and recorded activities using an optical surveillance device, without consent. The recordings were published by Farm Transparency.
The SD Act regulates the use of surveillance devices in NSW. The express objects of the SD Act are to:
provide a framework for the use of surveillance devices in criminal investigations
enable law enforcement agencies to covertly gather evidence for the purpose of criminal prosecutions, and
ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices.
Mr Delforce indicated that Farm Transparency had in the past engaged, and may in the future engage, in conduct that contravened ss. 11 and 12 of the SD Act. Mr Delforce also indicated that he had in the past engaged in conduct that contravened s. 8 of the SD Act.
Sections 11 and 12 of the SD Act contain various prohibitions relating to the possession, communication, or publication of records or reports of private conversations or the carrying on of activities where the record has been obtained via a listening device, optical surveillance device, or tracking device in contravention of ss. 7-10 of the SD Act.
Section 8 of the SD Act prohibits the installation, use, or maintenance of an optical surveillance device within premises or a vehicle or other object to record activities, in circumstances including where entry onto the premises or into the vehicle amounts to a trespass.
Farm Transparency and Mr Delforce commenced proceedings in the High Court, contending that ss. 11 and 12 of the SD Act, when engaged by a contravention of s. 8, were invalid because they impermissibly burdened the implied freedom of political communication in the Constitution (Cth). The implied freedom relevantly operates as a restriction on legislative power: in essence, legislation will be invalid to the extent that it burdens communication on political or governmental matters in a manner that is not reasonably appropriate and adapted to pursuing a purpose compatible with maintaining the system of representative and responsible government.
Farm Transparency and Mr Delforce submitted that ss. 11 and 12 of the SD Act operated as an effective "gag" on communication about agricultural practices involving cruelty to animals. The State of NSW, for which the Crown Solicitor acted, defended the validity of ss. 11 and 12.
The Court, by majority, held that ss. 11 and 12 of the SD Act were valid as they did not impermissibly burden the implied freedom of political communication, at least where a person was complicit in the record or report being obtained exclusively in breach of s. 8 of the SD Act. The Court held that the incremental burden imposed by the prohibition on the publication and possession of visual records obtained by trespass was reasonably appropriate and adapted to the legitimate purposes of those provisions, being the protection of privacy through the deterrence of trespass, and property rights.
Law enforcement agencies must undertake surveillance operations in accordance with the SD Act, noting the prohibitions in ss. 7-12 . Legal advice should be sought on the interaction between the provisions of the SD Act and compliance and enforcement powers in the event of any uncertainty.
The CSO's Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.
31 May 2023
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