Home > News > Surveillance Laws Stand Strong: Farm Transparency International Ltd v State of New South Wales [2022] HCA 23

Surveillance Laws Stand Strong: Farm Transparency International Ltd v State of New South Wales [2022] HCA 23

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By Alicia Hill, Principal, Harriette Singh and Helena Swidron, Law Clerks

Introduction

On 10 August 2022, the High Court of Australia deliberated on the matter of Farm Transparency International Ltd v State of New South Wales [2022] HCA 23. The case concerned video evidence gathered by activists of potential animal cruelty activities. The videos were filmed on private land, without consent of the landowners.

The Court had to consider whether this non-consensual filming was lawful under the exception of implied freedom of political communication and the limitations of unlawful video evidence within proceedings.

Ultimately, the importance of privacy and farmers’ rights to land meant that freedom of speech was not a justification to obtain evidence unlawfully. The videos were constituted trespass and inadmissible.

Background

Farm Transparency International Ltd (FTI), is a not-for-profit charity which aims to raise public awareness of animal cruelty and seeks to improve the treatment of animals through changes to law, policy, practice and custom.

Christopher James Delforce, a director of Farm Transparency, entered onto the property of various farmers with the aim of installing surveillance devices on the property without the farmers’ knowledge. This act constituted trespass due to the lack of consent. The installed devices were used to record activities on the premises which were associated with farming and abattoir activities. These recordings were then published by FTI and Delforce in an effort to expose alleged acts of animal cruelty occurring on these properties.

Relevant Legislation

The relevant section of legislation is section 8(1)(a) of the Surveillance Devices Act 2007 (NSW) (the Act). It states:

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 –

  • entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle.

The State of New South Wales alleged that FTI and Delforce had breached section 8(1)(a) of the Act through the installation of the cameras on the farmers’ property. It further alleged that FTI and Delforce had breached section 11 of the Act through the publication of the unlawful video recordings, and breaches of section 12 for possession of the unlawful recordings.

Issues

FTI and Delforce argued that they had not breached section 11 or 12 as their constitutional right to freedom of political speech meant that they had a right to share the footage obtained.

Their justification for this was that the public deserves to know of any potential animal cruelty that occurs behind closed doors, and that they should be allowed to shed light on such matters.

The Court acknowledged that animal cruelty is an important issue to be considered by society and the legislature. However, it also acknowledged the importance of farmer’s rights, particularly in relation to trespass onto land.

Therefore, the Court had to consider:

  • whether section 11 and 12 of the Act impermissibly burdened the implied constitutional right to freedom of political communication?
  • Did the unlawful gathering of evidence (i.e. through trespass) invalidate the video evidence obtained by FTI and Delforce?

Majority judgment

To answer the above, the Court focused on the purposes of the Act, being to ensure the privacy of individuals is not unnecessarily impinged upon by the installation, use and maintenance of surveillance devices.

The Court stated that for any legislation to restrict or burden the implied freedom of political communication, it must be justified.

In assessing whether the restriction on political speech was justified, the Court looked at four broad categories to find out if it was proportionate to its purpose. These were:

  • Legitimacy of purpose;
  • Suitability of the restriction;
  • The burden and its extent; and
  • Necessity of the restriction.

After assessing these broad categories, the Court found that sections 11 and 12 did not unnecessarily impinged upon the constitutional right to freedom of political communication.

Firstly, the Court determined that the protection of farmers’ privacy was a legitimate purpose as it echoed the value of personal autonomy seen in the common law. The Court found that because of the limited application of the provisions to situations of non-consensual or trespassory recording, they did not disproportionately restrict freedom of speech. Further, this narrow application was not an inappropriate burden, as consensual filming was allowed by the Act, and therefore, it did not unreasonably restrict freedom of political speech. Ultimately, the restriction was balanced between preserving the private rights of farmers and allowing freedom of political speech.

The Court therefore held that neither section 11 or 12 impermissibly burdened the implied freedom of political communication. Therefore, as FTI and Delforce could not rely on the exception of freedom of political communication, they had contravened section 8, 11 and 12. In applying rules of evidence, as the videos were gathered in contravention of the Act, it is likely inadmissible as evidence before the Court.

It is noted that the Court did not find it necessary to determine whether sections 11 and 12 would burden the implied freedom in other applications or circumstances. Therefore, this broader scope remains up for determination.

Takeaways

This judgment sheds light on the importance of legitimate gathering of evidence. It acknowledges the inability for implied constitutional rights to be used as a fall back for unlawful activity, which in this case was the invasion of the landowners right to privacy for activities conducted on their own property.

Therefore, where some actions may seem morally acceptable, one must also consider the legal position as to whether the act will be legally acceptable and ramifications if it deemed not to be lawful.

This case has confirmed that where evidence has been gathered non-consensually via trespass of private land, breaching of section 8 of the Act, it will be inadmissible. This is because section 8 has been put in place to protect the privacy of individuals and is a standard that should be upheld in most circumstances. Thus, when your actions are dictated by legislation, you must keep in mind the purpose of an act and what it aims to achieve.

If you have any questions regarding this decision or any matters raised by it, please feel free to get in contact with Alicia Hill of the MST Dispute Resolution and Litigation team on (03) 8540 0200, or by email at alicia.hill@mst.com.au.