Australian Broadcasting Corporation v SAWA Pty Ltd
[2018] WASCA 29
•15 MARCH 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AUSTRALIAN BROADCASTING CORPORATION -v- SAWA PTY LTD [2018] WASCA 29
CORAM: BUSS P
MURPHY JA
BEECH JA
HEARD: 12 FEBRUARY 2018
DELIVERED : 15 MARCH 2018
FILE NO/S: CACV 117 of 2017
BETWEEN: AUSTRALIAN BROADCASTING CORPORATION
Appellant
AND
SAWA PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :CHANEY J
File No :CIV 2939 of 2017
Catchwords:
Surveillance devices - Application for permission to publish video-recording of private activity - Video played in open court in prosecution - Prosecution and video said to be relevant to proposed legislative amendments in Bill currently before Parliament - Whether widespread publication should be made to further public interest - Whether any appellable error in judge's decision
Legislation:
Surveillance Devices Act 1998 (WA), s 31
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr G R Donaldson SC & Mr B H Taylor
Respondent: Mr J D MacLaurin
Solicitors:
Appellant: Mills Oakley
Respondent: Salerno Law
Case(s) referred to in judgment(s):
A v Corruption and Crime Commission [2013] WASCA 288; (2013) 306 ALR 491
Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Bunning v Cross (1978) 141 CLR 54
Channel Seven Perth Pty Ltd v S [2007] WASCA 122; (2007) 34 WAR 325
Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309
House v The King [1936] HCA 40; (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Norbis v Norbis (1986) 161 CLR 513
Potter v Minahan (1908) 7 CLR 277
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
SAWA Pty Ltd v Australian Broadcasting Corporation [2017] WASC 349
SAWA Pty Ltd v Swift [2016] WASC 331
Wotton v The State of Queensland [2012] HCA 2; (2012) 246 CLR 1
JUDGMENT OF THE COURT:
Introduction
The appellant (the ABC) challenges the decision of the primary judge[1] to refuse its application for an order pursuant to s 31 of the Surveillance Devices Act 1998 (WA) (the Act), permitting it to publish and broadcast certain video recordings of activities at a cattle station owned and operated by the respondent (SAWA).
[1] SAWA Pty Ltd v Australian Broadcasting Corporation [2017] WASC 349 (primary reasons).
The question for the judge was whether he was satisfied that the publication of the recordings should be made to protect or further the public interest within the meaning of s 31 of the Act. That involves a broad evaluative judgment on which minds may reasonably differ. For the reasons that follow, the ABC has not demonstrated that the judge made an appellable error. Consequently, the appeal must be dismissed.
Background[2]
[2] The following is, unless otherwise stated, taken from the unchallenged findings of the primary judge.
In July 2012, an employee of SAWA secretly videoed activity at a cattle station in the north‑west of Western Australia. Most of it related to the dehorning of cattle. One video‑recording showed the euthanising of an animal. The employee made the recordings because of his concern as to the welfare of animals and with a view to reporting his concern to an appropriate authority.[3] He made the video‑recordings available to the RSPCA.[4]
[3] Primary reasons [15].
[4] Primary reasons [15].
In about July 2014, SAWA and its director, Mr Botha, were charged by an inspector of the RSPCA with eight animal cruelty offences contrary to s 19 of the Animal Welfare Act 2002 (WA). The prosecution relied heavily on the video footage.[5]
[5] Primary reasons [2].
Objection was taken at trial to the tender of the video footage on the basis that its recording was a contravention of the Surveillance Devices Act. At trial it appears it was accepted that the recording was a contravention.[6] The issue was as to the exercise of the court's discretion to exclude the evidence, having regard to the principles in Bunning v Cross.[7]
[6] It is not clear whether the accepted contravention occurred as a result of the use of the device to make a recording in alleged contravention of s 6 of the Act, or the publication of the recording to the RSPCA in alleged contravention of s 9 of the Act.
[7] Bunning v Cross (1978) 141 CLR 54.
The magistrate ruled that the video‑recording should not be excluded.[8]
[8] Primary reasons [2].
At trial, SAWA and Mr Botha were acquitted of all but one of the charges. They successfully appealed the single conviction to the Supreme Court. The conviction was overturned and a judgment of acquittal entered.[9]
[9] Primary reasons [3]; SAWA Pty Ltd v Swift [2016] WASC 331.
The appeal was heard on 5 October 2016. Reasons for decision were delivered on 14 October 2016. On 13 October 2016, an employee of the ABC lodged an application in the Magistrates Court, pursuant to s 33 of the Magistrates Court Act 2004 (WA), seeking to obtain a copy of the video‑recordings tendered in the proceedings before the magistrate. On 1 November 2016, the employee received an email from the Magistrates Court registry indicating that the magistrate had approved the application.[10]
[10] Primary reasons [4].
After SAWA's solicitor became aware that the ABC had obtained a copy of the footage, SAWA commenced proceedings in the General Division of this court seeking an injunction restraining publication of the video‑recordings in any form. That led to an application by the ABC for an order pursuant to s 31 of the Act. This appeal concerns the primary judge's refusal of that application.
The ABC's application
The grounds of the ABC's application were set out in the notice of motion, as follows:
(a)The publication of the material in respect of which leave is sought would further and protect the public interest in:
(i)free communication, and the promotion of public debate, about the merits and desirability of proposed amendments to the Animal Welfare Act 2002 (WA) presently before the Parliament of Western Australia;
(ii)free communication, and the promotion of public debate, about the administration and effectiveness of the law as it relates to the treatment and welfare of animals in the State of Western Australia;
(iii)the prevention of inhumane treatment of animals in the State of Western Australia and elsewhere;
(iv)receiving fair and accurate reports of proceedings conducted in open court, including the evidence adduced therein;
(v)the maintenance of the principle of 'open justice' and the integrity of the judicial system in the State of Western Australia.
(b)The publication of the material in respect of which leave is sought should be permitted, on the basis that:
(i)In the circumstances, the public interests set out at (a) significantly outweigh any competing public interests;
(ii)The material has been exhibited in open court and in the absence of any order restraining its publication;
(iii)The substance of the evidence before the court is best and immediately conveyed by the exhibition of the recordings themselves and cannot be otherwise adequately conveyed in serving the public interest;
(iv)The material has been legitimately released to the Defendants in accordance with section 33 of the Magistrates Court Act 2004 (WA);
(v)The contents of the material have been reported in other public forums as part of fair and accurate reports of proceedings.
It is convenient to outline the Act, and an earlier decision of this court concerning the Act, before coming to the primary judge's reasons.
The Surveillance Devices Act
The prohibition against use of surveillance devices in s 5 and s 6
The Act regulates, among other things, the use of listening devices and optical surveillance devices in respect of private conversations and private activity. In general terms, s 5(1) prohibits a person from using a listening device to record a private conversation, including a private conversation to which the person is a party. Similarly, in general terms, s 6(1) prohibits a person from using an optical surveillance device to record a private activity, including a private activity to which the person is a party.
The terms 'party', 'private conversation' and 'private activity' are defined in s 3 of the Act as follows:
party means -
(a)in relation to a private conversation -
(i)a person by or to whom words are spoken in the course of the conversation; or
(ii)a person who, with the express or implied consent of any of the persons by or to whom words are spoken in the course of the conversation, records, monitors or listens to those words;
and
(b)in relation to a private activity -
(i)a person who takes part in the activity; or
(ii)a person who, with the express or implied consent of any of the persons taking part in the activity, observes or records the activity;
private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard;
private activity means any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed[.]
It is not and was not an issue in these proceedings that the matters depicted in the video‑recording are private activities for the purposes of the Act.
Exceptions to the prohibition in s 5 and s 6
The prohibitions in s 5 and s 6 are subject to a number of specified exceptions. Section 5(2) provides that the general prohibition in s 5(1) of the Act does not apply where, amongst other things, there has been use of a listening device 'in accordance with Part 5' of the Act.[11]
[11] Section 5(2)(d) of the Act.
Section 5(3) also exempts, from the general prohibition in s 5(1), the use of a listening device by or on behalf of a person who is a party to a private conversation if, amongst other things:
•'each principal party' consents to that use;[12] or
•'a principal party' to the private conversation consents to that use and the use is 'reasonably necessary for the protection of the lawful interests of that principal party'.[13]
[12] Section 5(3)(c) of the Act.
[13] Section 5(3)(d) of the Act.
'Principal party' is defined in s 3 of the Act. In relation to a private conversation, it is defined to mean a person by or to whom words are spoken in the course of the conversation. In relation to a private activity, it is defined to mean a person who takes part in the activity.
Section 6(2) and s 6(3) are in similar terms to s 5(2) and s 5(3) in relation to the use of an optical surveillance device.
The prohibition against publication in s 9
Section 9 of the Act prohibits the publication of a report or record of a private conversation or a record of a private activity that has come to a person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device. It provides as follows:
9. Prohibition of publication or communication of private conversations or activities
(1)Subject to subsection (2), a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.
Penalty:
(a)for an individual: $5 000 or imprisonment for 12 months, or both;
(b)for a body corporate: $50 000.
(2)Subsection (1) does not apply -
(a)where the publication or communication is made -
(i)to a party to the private conversation or the private activity;
(ii)with the express or implied consent of each principal party to the private conversation or private activity;
(iii)to any person or persons authorised for the purpose by the Commissioner of Police, the Corruption and Crime Commission or the Chair of the Board of the Australian Crime Commission;
(iiia)to a designated Commission or to any person or persons authorised for the purpose by a designated Commission;
(iv)by a law enforcement officer to the Director of Public Prosecutions of the State or of the Commonwealth or an authorised representative of the Director of Public Prosecutions of the State or of the Commonwealth;
(v)in the course of the duty of the person making the publication or communication;
(vi)for the protection of the lawful interests of the person making the publication or communication;
(vii)in the case of the use of a listening device or an optical surveillance device in the circumstances referred to in section 5(3)(d) or 6(3)(b)(iii), as the case requires, in the course of reasonable action taken to protect the lawful interests of the principal party to the conversation or activity who consented to the use of the device;
(viii)in accordance with Part 5; or
(ix)in the course of any legal proceedings;
(b)where the publication or communication is made to a member of the police force of the State or of another State or a Territory in connection with -
(i)an indictable drug offence or an external indictable drug offence; or
(ii)any other indictable matter of such seriousness as to warrant the publication or communication;
or
(c)where the person making the publication or communication believes on reasonable grounds that it was necessary to make that publication or communication in connection with an imminent threat of serious violence to persons or of substantial damage to property.
(3)Subsection (2) only provides a defence if the publication or communication -
(a)is not more than is reasonably necessary -
(i)in the public interest;
(ii)in the performance of a duty of the person making the publication or communication; or
(iii)for the protection of the lawful interests of the person making the publication or communication;
(b)is made to a person who has, or is believed on reasonable grounds by the person making the publication or communication to have, such an interest in the private conversation or activity as to make the publication or communication reasonable under the circumstances in which it is made;
(c)is made by a person who used the listening device to record, monitor or listen to that conversation or an optical surveillance device to record or observe that private activity in accordance with a warrant or an emergency authorisation issued under Part 4; or
(d)is made by an authorised person employed in connection with the security of the Commonwealth under an Act of the Commonwealth relating to the security of the Commonwealth. (emphasis added)
The 'public interest' exceptions to s 5, s 6 and s 9 in pt 5
Part 5 of the Act deals with the use of 'surveillance devices' in the public interest. 'Surveillance device' is defined in s 3 of the Act to mean, relevantly, a listening device or an optical surveillance device. Read with s 5(2)(d) and s 6(2)(d), pt 5 contains exceptions to the prohibitions in s 5 and s 6 on the use of a listening device or an optical surveillance device. Read with s 9(2)(a)(viii), pt 5 contains exceptions to the prohibition in s 9 on the publication of a private conversation or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.
Part 5 of the Act consists of four divisions. Division 1 contains a definition section (s 24) and a provision (s 25) to the effect that pt 5 does not apply if, in the course of installing or using a listening device or optical surveillance device, an act is done that is unlawful under any law or under any statute other than the Act. The term 'public interest' is defined in s 24 to include 'the interests of national security, public safety, the economic well‑being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens'.
Division 2 of pt 5 contains provisions (s 26 and s 27) which, in broad terms, allow a person who is a party or who is acting on behalf of a party to use a listening device or optical surveillance device to record a private conversation or private activity if a principal party consents to that use, and 'there are reasonable grounds for believing that the use of [the listening device or the optical surveillance device] is in the public interest'.[14] Relevantly for present purposes, s 27 provides:
[14] Section 26(1) ‑ (3), s 27(1) - (3).
27. Use of optical surveillance devices in the public interest
(1)A person who is a party to a private activity may use an optical surveillance device to record visually the private activity if a principal party to the private activity consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the optical surveillance device is in the public interest.
(2)A person who is acting on behalf of a party to a private activity may use an optical surveillance device to record visually or observe the private activity if a principal party to the private activity consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the optical surveillance device is in the public interest.
(3)A person who has under his or her care, supervision or authority a child or a protected person who is a principal party to a private activity may, on behalf of the child or protected person, use an optical surveillance device to record visually or observe the private activity if there are reasonable grounds for believing that the use of the listening device -
(a)will contribute towards the protection of the best interests of the child or protected person; and
(b)is in the public interest.
(4)In this section -
protected person means a person who by reason of mental impairment is unable to consent in accordance with subsection (1) or (2) to the use of an optical surveillance device. (emphasis added)
Division 3 of pt 5 is headed 'Emergency use of listening devices and optical surveillance devices in the public interest'. It contains provisions (s 28 ‑ s 30) which, in broad terms, allow a person to use a listening device or optical surveillance device to record a private conversation or private activity 'if at the time of use there are reasonable grounds for believing that the circumstances are so serious and the matter is of such urgency that the use of the … device is in the public interest'.[15] By s 30, a person who uses a listening device or optical surveillance device under s 28 or s 29 must deliver 'without delay' a written report to a judge. A judge may order that a record of evidence or information obtained by the use of the device be returned, or made available to any person, or destroyed.[16]
[15] Section 28, s 29.
[16] Section 30(4).
Division 4 of pt 5 is headed 'Publication or communication in the public interest'. It includes s 31, pursuant to which the ABC's application was made, and provides as follows:
31. Order allowing publication or communication in the public interest
(1)A judge may make an order that a person may publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device under Division 2 or 3, if the judge is satisfied, upon application being made in accordance with section 32, that the publication or communication should be made to protect or further the public interest.
(2)A judge, when making an order under subsection (1), may impose such conditions or restrictions as the judge considers necessary in the circumstances.
(3)Upon an application made under section 32 a judge may make an order that a report or record of a private conversation, or a record of a private activity -
(a)be made available to any person or destroyed;
(b)be delivered to -
(i)the police force of the State or of another State or a Territory;
(ia)the Corruption and Crime Commission;
(ib)the Parliamentary Inspector of the Corruption and Crime Commission;
(ii)a designated Commission;
(iii)the Australian Federal Police; or
(iv)the Australian Crime Commission;
or
(c)be kept in the custody of the court if the judge is satisfied that it is necessary to protect or further the public interest. (emphasis added)
It can be seen that s 31 applies only where the record of a private conversation or private activity has come to the applicant's knowledge as a result of the use of a listening device or optical surveillance device under div 2 or 3. In this case, the judge found that this condition was satisfied with respect to the ABC, and so s 31 had application. There is no challenge to that finding.
The decision in Channel Seven v S
The proper construction of s 31 of the Act was considered by this Court in Channel Seven Perth Pty Ltd v S.[17] Neither party sought to challenge the correctness of that decision.
[17] Channel Seven Perth Pty Ltd v S [2007] WASCA 122; (2007) 34 WAR 325.
In that case, an employee took a hidden camera, at the suggestion of a television station, to a meeting with her former employer to record a discussion between her and the general manager of the employer, concerning the circumstances of the termination of her employment. The following propositions may be drawn from that decision:
1.The word 'may' in s 31 does not confer a discretion. A judge hearing an application has to make a value judgment regarding whether publication should be made to protect or further the public interest. The judge has latitude in the making of that value judgment. However, if the judge is so satisfied, the judge must order publication.[18]
2.The purpose of the Act is to prohibit the use of covert devices save in specified circumstances and to prohibit the publication of private information directly or indirectly obtained from the use of such devices save in specified circumstances.[19]
3.The scheme relating to the exceptions to the prohibitions includes specific exceptions as well as an exception where the use or publication is in accordance with pt 5 of the Act. Part 5 arises where the conduct does not fall, or arguably does not fall, within the specific exceptions nominated in the prohibition sections.[20]
4.The fact that a breach of the prohibition against use or publication constitutes a criminal offence reflects a legislative acceptance that there is a strong public interest and public policy against the use of covert devices in relation to private conversations and private activity, and the publication of information obtained by such use. That strong public interest is reflected in the requirement in s 31 that the judge be satisfied not simply that publication is in the public interest, but that the publication should be made to protect or further the public interest.[21]
5.It is wrong to take into account the interest of members of the community in general, or of particular individuals, in maintaining the privacy of private conversations and private activities as such. The Act does not establish a general right to privacy in respect of private conversations and activities. Rather, it places significant limitations on using covert means to access such information and on publishing information obtained by using covert means. The consequence of this is that private conversations and private activities recorded or accessed by covert devices are protected.[22]
6.In the circumstances of the case, there was a public interest in allowing exchanges, in good faith, between an employer and an employee on matters affecting the employment relationship. That public interest would be impaired insofar as the prospect of appearing on 'candid camera' acted as a disincentive to engaging in communications of that nature in good faith.[23]
7.In determining whether the publication of a private conversation or private activity should be made to protect or further the public interest, regard may be had to the scope of the intended publication. Whilst the publication of a covert recording to the world at large may more effectively stimulate interest in an issue of public interest because the recording has some entertainment value, the stimulation of interest by disseminating the private conversation or private activity may not meaningfully contribute to the public interest if the issue can be effectively ventilated in the public sphere without deploying the covert recording.[24]
8.The critical question on an application under s 31 is whether, notwithstanding the public interest reflected in the general prohibition imposed by the Act on the publication of covertly recorded private conversations or activities and the Act's limited and conditional exceptions to that general prohibition, the publication in question should, nevertheless, be made, in the particular circumstances of the case, to protect or further the public interest.[25]
[18] Channel Seven v S [21], [22].
[19] Channel Seven v S [24].
[20] Channel Seven v S [25], [57].
[21] Channel Seven v S [26] (emphasis in the original).
[22] Channel Seven v S [29].
[23] Channel Seven v S [39].
[24] Channel Seven v S [40].
[25] Channel Seven v S [31], [60].
It may be added that the consideration referred to in the first sentence of point 7 above may have particular force where the publication to the world at large is likely to result in republication, possibly countless times, on the internet without the leave required by s 31 and for reasons entirely unconnected with any informed and rational debate of the broader issues of public importance raised by the private conversation or private activity. The weight, if any, to be given to such matters will, of course, depend upon all the circumstances of the case.
The reasons of the primary judge
The judge outlined the background to the application and the relevant provisions of the Act.
The judge correctly observed that the approval of the magistrate under s 33 of the Magistrates Court Act did not constitute the grant of permission under and for the purposes of s 31 of the Surveillance Devices Act. An application under the latter Act can only be made to a judge of this court. See the definition of 'judge' in s 5 of the Interpretation Act 1984 (WA).
The judge found that the covert recording by the employee of SAWA was authorised under s 27, in that:
(a)the employee was a principal party to the private activity, namely the dehorning or euthanising of cattle;[26] and
(b)there were reasonable grounds for believing that the employee's use of the optical surveillance device was in the public interest in the free and effective reporting of concerns as to the maltreatment of animals to an appropriate authority.[27]
[26] Primary reasons [12] ‑ [14].
[27] Primary reasons [15] ‑ [16].
The judge summarised aspects of the decision in Channel Seven v S.[28]
[28] Primary reasons [18] ‑ [21].
His Honour then set out the grounds of the ABC's application from the notice of motion.[29]
[29] Primary reasons [22].
The judge observed that the ABC based its contention, that publication of the video‑recording should be made to protect or further the public interest, partly on the proposition that publication would facilitate an informed public understanding of issues relevant to current Parliamentary debate over amendments to the Animal Welfare Act 2002 (WA).[30] His Honour proceeded to summarise aspects of the proceedings before the magistrate and what had been said in the second reading speech of the relevant amendment Bill.
[30] Proposed in the Animal Welfare Amendment Bill 2017; primary reasons [23].
The judge summarised what had been said in an affidavit sworn by Hugh Bennett and filed on behalf of the ABC. That was to the effect that the ABC wished to publish the video‑recordings in the context of news and current affairs stories which:[31]
(a)will discuss the differences between the relevant law as enforced at the time of the charges against [SAWA] and as contemplated by the proposed amendments to the Animal Welfare Act presently before the Parliament of Western Australia;
(b)will discuss the standards concerning the dehorning of cattle presently applicable in Western Australia, how those differ from alternative standards enforced elsewhere and whether the Western Australian standards are adequate;
(c)will discuss the relative merits and desirability of amendments to the law proposed by the Animal Welfare Amendment Bill 2017; and
(d)in the context of the above matter, will fairly and accurately report on the criminal proceedings against [SAWA] in the magistrates court of Western Australia and subsequent appeal, including on the evidence which was presented to the court and on the basis of which [SAWA] was ultimately acquitted.
[31] Primary reasons [24].
The judge outlined the submissions and evidence on behalf of SAWA. These included:[32]
1The order should not be made because of the breadth of the use to which the ABC seeks to put the video‑recordings.
2.The ABC had not explained precisely in which way the footage would be deployed in proposed broadcasts in the context of news and current affairs stories.
3.It was unclear why the publication of the footage was necessary in order to report upon the matters described in Mr Bennett's affidavit.
[32] Primary reasons [25].
The judge summarised evidence from Mr Botha, the director of SAWA. That evidence included Mr Botha's awareness that standard practices conducted in the cattle industry are confronting to the general public and, if publicly broadcast, were capable of bringing him and his company into disrepute. Further, Mr Botha expressed concern that publication of the footage could result in uncontrolled dissemination, given the potential for extensive republication via the internet and social media.[33]
[33] Primary reasons [26].
Further, SAWA pointed to the fact that, without broadcasting the footage itself, a number of media reports of the Magistrates Court proceedings, including by the ABC, were able to describe the events depicted in the video‑recordings and the evidence in relation to material aspects of those recordings. Thus, SAWA contended that the publication of the covert surveillance video‑recording was not necessary to enable the free and open debate as to animal welfare issues or to provide a fair and accurate report of the proceedings.[34]
[34] Primary reasons [27].
The judge correctly observed as follows:[35]
The question for determination under s 31 is whether publication should be made to protect or further the public interest. It is not sufficient that the publication merely relates to a matter of public interest, but rather requires a value judgment to be made as to whether, having regard to all relevant matters, publication should be made. That involves a process of weighing the competing public interest which underlies the constrictions on the use of covert surveillance devices through the Surveillance Devices Act with the protection or furtherance of the public interest said to be served by publication. (original emphasis)
[35] Primary reasons [28].
There is no challenge to this general statement of the approach to be taken.
His Honour referred to the decision in Channel Seven v S. In particular, the judge referred to McLure JA's: (1) identification of the scope of publication as a relevant factor; and (2) conclusion that if the matters relied upon in that case satisfied the statutory criteria in s 31, there could be widespread use by the media of covertly obtained private information, an outcome not consistent with the language and purpose of the Act.[36]
[36] Primary reasons [29], referring to Channel Seven v S [40].
His Honour's essential reasoning was then set out in the following two paragraphs:[37]
Having considered the competing positions of the parties, and having viewed the video recordings, I am not satisfied that publication of the video recordings should be made to protect or further the public interest. That is because I am satisfied that the purpose for which the defendant seeks to utilise the video recordings, including the decision to fairly and accurately describe the proceedings before the magistrate, can be adequately achieved by discussion of the evidence adduced in the Magistrates Court, as was done in the various publications at or shortly after the time the proceedings were dealt with, and that display of the video recordings is not necessary for that purpose. I am also mindful that the privacy which the Surveillance Devices Act is designed to protect, and which the plaintiff and its principal Mr Botha, are anxious to protect (whatever one might think about his motivation for that anxiety), would be damaged in an uncontrolled way by publication of the video recordings to the world at large. Although the defendant's grounds of application presume some limitation on the use of the publication to the identified areas of public interest, the order which it seeks does not limit publication to any particular purpose but is in terms that would permit broadcast of the recordings for any purpose. I do not consider that an order conditioned upon use only for the purposes identified in the grounds, or in the affidavit of Mr Bennett, is appropriate. That is because the breadth of the purposes described is so wide as to make such a condition very difficult, if not impossible, to enforce.
It is the case that the footage has been received in evidence and played in open court. It was however subject to objection on the basis of what was accepted to be its illegality. The considerations which the magistrate was required to take into account in determining whether to exercise a discretion to exclude the evidence are different from the considerations to be taken into account under s 31 of the Surveillance Devices Act. The fact that the defendant came into possession of the recording through a legitimate process also cannot be determinative of an application under s 31.
[37] Primary reasons [30], [31].
His Honour therefore concluded that the ABC's application must be dismissed.
Grounds of appeal
The ABC's grounds of appeal are in the following terms:
1.In exercising the discretion conferred by s.31(1) of the Act the learned primary judge erred in [law] by acting upon a wrong principle. His Honour did not apply the principle of legality by which the discretion was to be exercised so as not to infringe fundamental common law right of free speech; Judgment [30].
2.In exercising the discretion conferred by s.31(1) of the Act the learned primary judge erred in [law] by being guided by extraneous or irrelevant matters and mistaking the facts before him. His Honour characterised the purpose of the Appellant in seeking the orders as solely being the fair and accurate report of the trial of SAWA and Mr Botha for contravention of the Animal Welfare Act 2002; whereas the essential purpose of the Appellant in seeking the orders was to inform the public about matters the subject of debate in the Parliament of Western Australia in relation to amendments to the Animal Welfare Act 2002; Judgment [23], [30].
3.In exercising the discretion conferred by s.31(1) of the Act the learned primary judge erred in [law] by failing to take into account a relevant matter; being that the recording was played in open court at the trial of SAWA and Mr Botha for contravention of the Animal Welfare Act 2002; that reproduction of the recording was not suppressed; that thereby the recording was able to be accessed by the Appellant pursuant to s.33 of the Magistrates Court Act 2004; and that provisions such as s.33 of the Magistrates Court Act 2004 are now central to the open court principle.
4.In exercising the discretion conferred by s.31(1) of the Act the learned primary judge erred in [law] by failing to take into account a relevant matter; being the principle of consistency in decision making.
5.In exercising the discretion conferred by s.31(1) of the Act the learned primary judge erred in [law] by acting upon a wrong principle. His Honour erroneously considered the private interests of SAWA and Mr Botha relevant to exercise of power under s.31(1) of the Act; Judgment [30].
6.In exercising the discretion conferred by s.3l(l) of the Act the learned primary judge erred in [law] by failing to take into account relevant matters; being (first) that the Appellant sought an order, in [2] of its motion, that in any publication no person depicted would be identified; second, that SAWA and Mr Botha had no legitimate interest in the recording not being published.
7.In exercising the discretion conferred by s.31(1) of the Act the learned primary judge erred in [law] by failing to take into account a relevant matter; being that the interests of all other parties could be readily protected by imposing conditions on any order under s.31(1) of the Act in terms of [2] of the Appellant's motion.
8.In exercising the discretion conferred by s.31(1) of the Act the learned primary judge erred in [law] in that the result embodied in his Honour's order was unreasonable and plainly unjust.
Particulars
(a)The conclusion that a fair and accurate report of the trial of SAWA and Mr Botha for contravention of the Animal Welfare Act 2002 could be 'adequately achieved' without publication of the recording is contrary to contemporary practice of courts in this State.
(b)The conclusion that a fair and accurate report of the trial of SAWA and Mr Botha for contravention of the Animal Welfare Act 2002 could be 'adequately achieved' without publication of the recording overlooks that informing the public about matters the subject of debate in the Parliament of Western Australia in relation to amendments to the Animal Welfare Act 2002 is enhanced by publication of the recording.
(c)The conclusion that a fair and accurate report of the trial of SAWA and Mr Botha for contravention of the Animal Welfare Act 2002 could be 'adequately achieved' without publication of the recording overlooks the inherent difficulty in describing visual images; can the Primavera be expressed in words.
Ground 4 was abandoned at the hearing of the appeal.[38]
[38] Appeal ts 58.
The nature of the appeal and appellable error
It is basic but important to recognise that the nature of the primary decision means that it is not sufficient that the appeal court consider that it would have come to a different conclusion. The decision as to whether publication should be made to protect or further the public interest is a discretionary value judgment for which the judge has latitude as to the decision to be made.[39] In other words, in a given case, reasonable minds may well differ as to whether a publication should be made to protect or further the public interest. Consequently, on appeal, the correctness of the decision can only be challenged by showing error in the decision‑making process in the way explained in House v The King.[40]
[39] Channel Seven v S [21], [51].
[40] Channel Seven v S [21], [52]; House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; see also Norbis v Norbis (1986) 161 CLR 513, 517 ‑ 519.
Grounds 1 to 3 and 5 to 7 complain of express errors in the exercise of the discretion. Ground 8 complains of implied error, namely that the outcome of his Honour's decision was unreasonable and plainly unjust.
Ground 1
Ground 1 asserts that the primary judge acted on a wrong principle in failing to apply the principle of legality. The ground itself asserts that by the principle of legality, the discretion was to be exercised 'so as not to infringe fundamental common law right of free speech'.
The ABC's submissions were to the following effect:
(1)Freedom of speech is a long‑established fundamental common law right or freedom.[41]
(2)The principle of legality, which requires recognition of the fundamental common law right of free speech, is, on a proper construction of s 31 of the Act, a mandatory relevant consideration.[42]
(3)In exercising his power under s 31, the judge did not refer to and evidently paid no regard to the principle of legality and, specifically, freedom of speech, and thereby erred.[43]
[41] Appellant's submissions [13]; appeal ts 15 ‑ 16.
[42] Appeal ts 16, 17, 18, 22, 21, 37.
[43] Appellant's submissions [15], [18]; appeal ts 16, 21, 22, 23.
For the reasons that follow, we do not accept these submissions.
There is a longstanding common law presumption against imputing to the legislature an intention to interfere with fundamental rights and freedoms unless a contrary intention is clearly manifested.[44] More recently it has been referred to as the principle of legality, governing the relationship between Parliament, the Executive and the courts.[45]
[44] See, for example, Potter v Minahan (1908) 7 CLR 277, 304, and other authorities collected by French CJ in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 [42] at footnote 162.
[45] See, for example, Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [15] citing Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 [21], per Gleeson CJ.
This well‑known and well‑established principle informs the construction of statutes where constructional choices are open. The ABC invokes this principle in a very different context. The ABC submits that the principle of legality applies to s 31 to mean that, when a judge is considering an application under s 31, the principle of legality and the prima facie right to free speech are mandatory relevant considerations.
A mandatory relevant consideration is one which, on a proper construction of the Act in question, the decision‑maker is bound to take into account in the proper exercise of the power.[46] The factors which a decision‑maker is bound to consider are determined by construction of the statute in which the discretionary power is conferred. If a discretion is unconfined by the statute, those factors must be determined by implication from the subject matter, scope and purpose of the Act.[47] A court will not find that the decision‑maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act.[48] Between matters that a decision‑maker is bound to take into account, and those irrelevant considerations which the decision‑maker is, on the proper construction of the statute, prohibited from considering, there may be a wide range of permissible considerations which the decision‑maker may weigh or disregard without committing an error of law.[49]
[46] See, in the context of administrative decision‑makers, Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24, 39; A v Corruption and Crime Commission [2013] WASCA 288; (2013) 306 ALR 491 [88].
[47] Peko‑Wallsend (39 ‑ 40); A v Corruption and Crime Commission [89].
[48] Peko‑Wallsend (40).
[49] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288 [22]; A v Corruption and Crime Commission [90].
The ABC did not identify any case in which the principle of legality had been applied or invoked in the course of identifying mandatory relevant considerations in the exercise of a statutory power. Senior counsel for the ABC referred to the general observation of French CJ in Attorney‑General (SA) v Corporation of the City of Adelaide that a consequence of the effect of the principle of legality on statutory construction may be to affect the scope of discretionary powers which involve the imposition of restrictions on freedom of speech and expression.[50] Counsel also referred to what was said by the plurality in Wotton v The State of Queensland,[51] where their Honours observed that:
(1)relevant provisions of the Interpretation Act required legislation to be interpreted to the full extent of, but not exceeding, the legislative power of the State legislature;
(2)the discretionary powers conferred under the legislation must be exercised in accordance with any applicable law, including the Constitution;
(3)(i) where a putative burden on political communication has its source in statute, the issue presented is one of a limitation upon legislative power;
(ii)whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law;
(iii)rather, the question is whether the repository of the power has complied with the statutory limits;
(iv)if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder does not raise a constitutional question, as distinct from a question of the exercise of statutory power.
[50] Attorney‑General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 [44].
[51] Wotton v The State of Queensland [2012] HCA 2; (2012) 246 CLR 1 [9] ‑ [10], [21] ‑ [22].
The submissions of the ABC did not explain how these general statements were to be applied in construing s 31. Nor did the ABC submit that, in any respect, s 31 might be invalid unless it were read down, or read in a particular way, whether by reference to the principle of legality or otherwise.
It was submitted that:
(1)in balancing the considerations relevant to the public interest question posed by s 31, the judge is required to take into account the presumption of freedom of expression;[52] and
(2)this presumption gives rise to a prima facie right in the ABC to publish the material.[53]
The ABC did not otherwise articulate the manner in which the presumption of legality applies to the construction of s 31.
[52] Appeal ts 18, 37.
[53] Appeal ts 19.
It is difficult to see how a presumption that the legislature did not intend to encroach upon the fundamental right to freedom of speech could be applied in construing s 31, given the text, structure and evident purpose of the Act. Section 31 operates to qualify the express general prohibition in s 9 on publishing records of a private activity or conversation that have come to a person's knowledge as a result of the use of a surveillance device. Section 31 permits publication if, and only if, the judge reaches an affirmative state of satisfaction that the publication or communication should be made to protect or further the public interest.
Further, as we have said, the inquiry dictated by s 31 is open‑textured. It invites attention to a range of considerations, not all of which necessarily point in the same direction. The public interest in open debate about the subject matter of the proposed publication will be a relevant consideration to the court's assessment of whether publication should be ordered to protect or further the public interest. Freedom of speech and the benefits derived from it are subsumed into the question of whether the publication should be made to protect or further the public interest. However, there is no basis in the Act to give, and the principle of legality does not justify giving, presumptive force to this consideration over others. To give presumptive preference to freedom of speech and thus to publication would subvert the structure and intent of the Act. A presumption of free speech in the context of s 31 involves a presumption in favour of publication. The Act creates the opposite presumption by its general prohibition, in s 9, of publication.
For the above reasons, the Act's statutory framework leaves no room for applying a presumption at the s 31 stage. The Act cannot be construed as requiring a judge determining an application under s 31 to have regard to a presumption of freedom of expression or a prima facie right to publish material. On a proper construction of s 31, the principle of legality and a presumed right of free speech are not mandatory relevant considerations. The benefits to be derived from free speech in the circumstances of the case are part of the overall assessment of whether publication should be ordered to protect or further the public interest.
There is nothing to suggest that the primary judge overlooked the precept of freedom of expression, and the benefits derived from it, as relevant to the application. The primary judge set out in detail the grounds of ABC's application which specifically raised the public interest in open debate about whether amendment to particular legislation is desirable and open debate about the outcomes of prosecutions.[54] Further, his Honour summarised the ABC's contention in a way that the ABC accepts before this court was accurate.[55] That summary referred to facilitating and informing public understanding of the issues regarding proposed amendments to the Act and as to the proceedings before the magistrate.
[54] Primary reasons [22].
[55] Primary reasons [23], appeal ts 9.
In short, the judge recognised these aspects of the public interest as relevant to the application, but found that such debate could adequately be achieved by discussion of the evidence and of the issues without the playing of the video.[56] The judge did not proceed on the basis of any prima facie right to publish but, for the reasons already given, he was right not to do so.
[56] Primary reasons [30].
For these reasons, ground 1 fails.
Ground 2
Ground 2 asserts that the primary judge erred in characterising the ABC's purpose in seeking the orders as solely being a fair and accurate report of the Magistrates Court proceedings. In our view, the ground proceeds on a misreading of the judge's reasons. The judge did not characterise the reporting of the Magistrates Court proceedings as the ABC's sole purpose. Rather, he recognised that this was part of the ABC's purpose.
In the relevant passage of which the ABC complains,[57] the judge referred to 'the purpose for which [the ABC] seeks to utilise the video recordings, including the decision to fairly and accurately describe the proceedings before the magistrate'. By its nature, the word 'including' indicates that his Honour was not characterising the discussion of the Magistrates Court proceedings as the sole purpose. Moreover, the judge's reasons must be read as a whole. In [23] the judge set out a detailed summary of the ABC's contention that publication would facilitate and inform debate about the issues surrounding proposed amendments to the Animal Welfare Act. In [24], his Honour summarised, without criticism on appeal,[58] the ABC's wish to publish the video recordings in the context of news and current affairs stories which:[59]
(a)will discuss the differences between the relevant law as enforced at the time of the charges against [SAWA] and as contemplated by the proposed amendments to the Animal Welfare Act presently before the Parliament of Western Australia;
(b)will discuss the standards concerning the dehorning of cattle presently applicable in Western Australia, how those differ from alternative standards enforced elsewhere and whether the Western Australian standards are adequate;
(c)will discuss the relative merits and desirability of amendments to the law proposed by the Animal Welfare Amendment Bill 2017; and
(d)in the context of the above matter, will fairly and accurately report on the criminal proceedings against [SAWA] in the magistrates court of Western Australia and subsequent appeal, including on the evidence which was presented to the court and on the basis of which [SAWA] was ultimately acquitted.
[57] Primary reasons [30].
[58] Appeal ts 9.
[59] Primary reasons [24].
Paragraphs (a) to (c) refer in detail to issues concerning proposed amendments to the Animal Welfare Act. Paragraph (d) referred to a fair and accurate report of the criminal proceedings in the context of what was set out above. His Honour's reference to the ABC's purpose was evidently a reference to all of what was said in [24], including the specific reference to a description of the proceedings before the magistrate.
There is no merit in ground 2.
Ground 3
Ground 3 asserts that the judge failed to take into account a relevant consideration, namely that the recording was played in open court during the Magistrates Court proceedings and that a copy could be obtained under s 33 of the Magistrates Court Act.
Although this ground is framed as a failure to take into account a relevant consideration, on a proper analysis, it is not of that character. In the course of the hearing, senior counsel for the ABC accepted that this was so.[60] The considerations relevant to a decision‑maker's task are, generally at least, to be identified by reference to the Act rather than the particular facts of the case.[61] It cannot be said that, on a proper construction of s 31 of the Act, the fact that the video had been played in open court was a mandatory relevant consideration. Rather, on a proper analysis, this ground, and the submissions in support of it, complains of a weighting error and feeds into ground 8, which complains that the outcome in itself reveals implied error.
[60] Appeal ts 29 ‑ 30.
[61] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 [73] ‑ [74].
For these reasons, we would dismiss ground 3.
Ground 5
The ABC submits that:
(1)in Channel Seven v S, this court held that, in an application under s 31, the court cannot have regard to the individual right to, or expectation of, privacy of those whose private activities are the subject of the application; and
(2)in [30] of his reasons, the primary judge gave weight to the individual right to privacy of Mr Botha and SAWA and thereby erred.[62]
[62] Appellant's submissions [36] ‑ [37]; appeal ts 40 ‑ 43.
Ground 5 turns essentially on the proper construction of the primary judge's reasons. For the reasons explained below, we do not accept the second of the ABC's submissions, as summarised immediately above.
In Channel Seven v S, the primary judge held that in assessing the public interest under s 31:[63]
There is also a public interest in not publishing the interview. There is a public interest in maintaining the privacy of private conversations and activity. A person living in Australia in 2005 has an expectation of privacy that extends to not having his or her private conversations and activities published to the public at large.
[63] Channel Seven v S [27].
McLure JA, with whom Pullin and Buss JJA agreed, held that the above reasons of the primary judge revealed error. Her Honour observed that the Act does not establish a general right to privacy in respect of private conversations and activities. The Act places significant limitations on using covert means to access information as to private conversations and activities and on publishing information obtained by using covert means. The prohibitions on use of covert devices and on publication of information obtained by that use mean that private conversations and private activities accessed by covert devices are protected.[64]
[64] Channel Seven v S [29].
The primary judge in this case did not approach the question of public interest in the same manner as the primary judge in Channel Seven v S. In this case, the primary judge recognised, by reference to Channel Seven v S, that the Act makes it an offence for a person to knowingly publish a record of a private activity that has come to that person's knowledge as a direct or indirect result of the use of covert devices, but does not prohibit the publication of the content of private activities generally.[65] The ABC's ground fixes on a single sentence of [30] of the primary reasons which, for convenience, we repeat:
I am also mindful that the privacy which the Surveillance Devices Act is designed to protect, and which the plaintiff and its principal Mr Botha are anxious to protect (whatever one might think about his motivation for that anxiety), would be damaged in an uncontrolled way by publication of the video recording to the world at large.
[65] Primary reasons [20], referring to Channel Seven v S [23].
The primary judge had earlier referred to Mr Botha's evidence, as outlined in [37] above.
To our minds, the focus of this sentence at [30] is on the width of the proposed publication and the inability to control republication of the video once it is published. As indicated earlier,[66] that is a relevant factor[67] and the ABC did not suggest otherwise.[68] In referring to the privacy the Act is designed to protect, and which SAWA and Mr Botha were concerned to protect, the judge was addressing the public interest insofar as it is affected by the scope of publication to the world at large and the consequences of uncontrolled republication. In determining whether the public interest would be protected or furthered, the court may take into account not only the particular purposes for which the applicant seeks an order under s 31 (in this case, for the purposes of informing public debate on forthcoming amendments to legislation and providing a fair and accurate report of criminal proceedings), but also the prospect that publication, in accordance with the court's order, would or may result in uncontrolled republication for entirely extraneous purposes, without an order under s 31 allowing republication and contrary to s 9 of the Act.
[66] The first sentence of point 7 in [27] above.
[67] Channel Seven v S [40].
[68] Appeal ts 10.
There is no error in the judge's reference to the privacy that the Act is designed to protect. In Channel Seven v S, this court held that, in weighing the public interest, it was wrong to take into account the interest of members of the community in general, or of particular individuals, in maintaining the privacy of private activities as such. However, the court recognised that the rationale for the Act's restrictions on the use of surveillance devices is to protect citizens' interests in privacy, in relation to private conversations and private activities, from intrusion by the use of covert devices.[69] This rationale is reflected in the statement of the general object of the Act by the Minister in his second reading speech:[70]
The Surveillance Devices Bill will greatly assist police and other law enforcement agencies in the detection and prosecution of offences through the use of surveillance devices. The Bill also provides restrictions on the use of surveillance devices in the interests of the privacy of citizens of this State.
The width of publication and the prospect of uncontrolled republication affects the degree to which an order for publication would impinge upon this rationale. Wide publication and uncontrolled republication would tend to amplify the intrusion on privacy by the use of the covert device, contrary to the broad public interest which the Act is designed to protect.[71] This explains why the judge's point, about the width of publication and prospect of uncontrolled republication, is expressed in terms of damage (by the use of covert devices) to the privacy which the Act is designed to protect.
[69] Channel Seven v S [24], [29], [31].
[70] Western Australia, Parliamentary Debates, Legislative Assembly, 21 October 1997, 7100 (Mr Day, Minister for Police); cited by Buss JA in Channel Seven v S [59].
[71] That is, as we have said [76], relevant to the public interest enquiry dictated by s 31.
SAWA and Mr Botha's concern to protect the privacy of the covertly recorded activities from wide‑spread publication of the covertly recorded material was simply the particular manifestation, in this case, of the interest in protecting privacy from intrusion by covert devices which the Act is designed to provide. That is the sense of the judge's reference to SAWA and Mr Botha's concern. On the proper construction of his reasons, in the sentence the subject of the ABC's focus, the primary judge was not treating the particular interests of SAWA and Mr Botha in privacy as a matter that in and of itself weighed in the assessment of the public interest.
For these reasons, we would not uphold ground 5.
Grounds 6 and 7
In its notice of motion, the ABC proposed, as order 2, a condition that any publication of the footage by the ABC not identify the person depicted, either by name or visual representation of their faces.[72]
[72] Blue AB 2.
In support of grounds 6 and 7, the ABC submits that:
(1)the judge failed to refer to and, by implication, failed to take into account the condition proposed by the ABC in order 2;[73] and
(2)the condition proposed in order 2 would have meant that any interest of Mr Botha and SAWA in privacy would be 'completely protected'[74] and would 'preclude any adverse effect of publication'.[75]
[73] Appellant's submissions [38].
[74] Appellant's submissions [38].
[75] Appellant's submissions [41].
For the reasons that follow, we do not accept either of these submissions.
We do not accept that the judge failed to take into account the condition proposed by the ABC. The judge was clearly aware that the ABC proposed this condition. He referred to it in his opening description of the ABC's application.[76]
[76] Primary reasons [1].
In our view, it is not to be inferred that the judge overlooked this condition in his evaluation of whether publication should be made to protect or further the public interest. Rather, it should be inferred that the judge considered that such a condition did not sustain a conclusion that publication should be made to protect or further the public interest. In our view, that conclusion was well open to the judge. As there had been considerable publicity surrounding the prosecution and SAWA's successful appeal,[77] any discussion of the Magistrates Court proceedings or the appeal, as was proposed by the ABC in its grounds and in Mr Bennett's affidavit,[78] would inevitably mean that SAWA and Mr Botha were readily identified. Thus, we do not accept the ABC's assertion that the condition in order 2 'would preclude any adverse effect of publication'.
[77] Green AB 57 ‑ 73.
[78] Primary reasons [22] ‑ [24].
In any event, the judge's essential reasons for refusing the application were that:
(1)the proposed debate and discussion of the Bill and the court proceedings could adequately occur by discussing the evidence in the case without playing the footage;
(2)thus there was limited, if any, furthering of the public interest in such debate by publication of the footage; and
(3)on the other hand, the proposed publication to the world at large could lead to uncontrolled republication on the internet of the covertly recorded footage.
Proposed condition 2 did not alter any of these considerations.
If and insofar as the ABC orally submitted that the judge failed to take into account that conditions, other than the condition in order 2, could have protected any relevant competing interests,[79] such submissions go beyond the scope of ground 7. Ground 7 is limited to conditions in terms of par 2 of the ABC's application. In any event, it was not incumbent on the primary judge to attempt to formulate conditions not identified by the ABC. As it happened, the primary judge considered the making of an order conditioned on use only for the purposes identified in the grounds or in the affidavit of Mr Bennett, although that had not been proposed by the ABC. However, his Honour determined that the width of those purposes would create unacceptable difficulties in enforcement.[80] While views may reasonably differ in that respect, there is no error in the primary judge's approach. Indeed, on appeal, in discussing possible conditions upon a re‑exercise by this court of the discretion, senior counsel for the ABC expressed similar concerns as to enforcement.[81]
[79] See appeal ts 46.
[80] Primary reasons [30].
[81] Appeal ts 14, 77.
For these reasons, we would dismiss grounds 6 and 7.
Ground 8
Ground 8 asserts that the decision reached by the primary judge is unreasonable and plainly unjust so as to reveal implied error. In other words, although the nature of the error is not discoverable, the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion.[82]
[82] House v The King (505); Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, 627.
The ABC's submissions in support of this ground had two major planks:
(1)The video had already been played in open court in the course of the Magistrates Court proceedings. That meant that any public interest in not publicising what a person could have seen in the court 'largely disappears'.[83] Further, the playing of the video in court engaged the principle of open justice. In contemporary times, courts in this jurisdiction exercise powers to permit access to and publication of evidence in completed trials to enable the broadest possible dissemination of such material.[84]
(2)The judge overlooked or failed properly to appreciate the power of images as compared to words.[85] The ABC submits that 'it is irrational and absurd' to conclude that pictures do not assist in informing public understanding and Parliamentary consideration of statutory concepts such as being cruel to an animal, what is unnecessary harm to an animal and what is injury, pain and distress to an animal.[86]
[83] Appellant's submissions [25].
[84] Appellant's submissions [24]; appeal ts 28 ‑ 29.
[85] Appellant's submissions [45] ‑ [46]; appeal ts 31, 46 ‑ 47.
[86] Appellant's submissions [45], see also [26], [28]; appeal ts 31.
In our respectful opinion, the decision reached by the primary judge cannot be said to be unreasonable or plainly unjust.
The fact that the video had been played in the course of the Magistrates Court proceedings was undoubtedly a material consideration in the evaluation of whether publication should be made to protect or further the public interest. However, it was not of controlling significance. We do not accept the ABC's submission that any public interest in not publicising what a person could have seen in the court largely disappears. The question for the judge was whether, in all the circumstances, the general prohibition on publication of a covertly recorded video of private activities should be lifted. The proposed publication would have been, in effect, to the world at large in circumstances that would have readily enabled uncontrolled republication. That was not true of the playing of the video in the Magistrates Court.
Further, the principle of open justice is not absolute.[87] It does not automatically trump a specific statutory scheme that limits or controls a particular kind of publication. In this case, the statutory scheme revealed a strong public interest against publication of a covertly recorded video, reflected in a breach of the prohibition against use or publication constituting a criminal offence.[88] Moreover, the principle of open justice is not an end in itself, divorced from its rationale.[89] The rationale of the principle is that exposure of court proceedings to public scrutiny is essential for the maintenance of confidence in the integrity and independence of the courts.[90] On the findings of the primary judge, that rationale did not require an order for publication of the covertly recorded video in this case. That is because the judge found that discussion of the Magistrates Court proceedings could adequately be achieved by discussion of the evidence adduced without a display of the video‑recordings.
[87] Re Hogan [31], [33], [50] ‑ [51].
[88] Channel Seven v S [26], [60].
[89] Re Hogan [30] ‑ [34], [49] ‑ [51].
[90] Re Hogan [33], [49] ‑ [50].
The ABC attacks this finding in its second contention, as outlined above. However, the extent to which public discussion of the issues would be enhanced by publication of the video was a question of degree and judgment. Like the primary judge, we have viewed the video footage. While the contrary view was open, taking everything into account, including the contents of the substantial discussion of the Magistrates Court proceedings and appeal that had already occurred,[91] the judge was entitled to reach the evaluative judgment which he did. In other words, it was open to the judge to conclude that publication of the footage would not materially enhance such debate because discussion of the court proceedings, and broader public and Parliamentary debate, could adequately occur, by outlining the evidence in the case and the practices depicted, without playing the footage.
[91] Green AB 57 ‑ 73.
It seems to us that the judge's conclusion is one on which reasonable minds might legitimately differ, rather than one from which error may be inferred.
For these reasons, ground 8 fails.
Leave to appeal
We are satisfied that if leave to appeal is necessary, it is appropriate that it be granted in this case. Consequently, we do not propose to enter the debate between the parties as to whether leave to appeal is required.
Conclusion
For the reasons we have given, we would make orders to the following effect:
1.Insofar as leave to appeal may be required, leave be granted.
2.The appeal be dismissed.
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