Channel Seven Perth Pty Ltd v "S" (A Company)
[2005] WASC 175
CHANNEL SEVEN PERTH PTY LTD -v- "S" (A COMPANY) [2005] WASC 175
| Link to Appeal : |
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| (2005) 30 WAR 494 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 175 | |
| Case No: | CIV:1875/2005 | 3, 5 & 8 AUGUST 2005 | |
| Coram: | LE MIERE J | 10/08/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Motion dismissed | ||
| A | |||
| PDF Version |
| Parties: | CHANNEL SEVEN PERTH PTY LTD "S" (A COMPANY) |
Catchwords: | Surveillance Devices Act 1988 (WA) Application for order allowing publication or communication in the public interest Competing public interests |
Legislation: | Equal Opportunity Act 1984 (WA), s 11 Surveillance Devices Act 1988 (WA), s 3, s 5, s 6, s 9, s 24, s 26, s 27, s 31 |
Case References: | Nil R v Smith, Turner & Altintas [1994] 63 SASR 123 Ridgeway v The Queen [1995] 184 CLR 19 Sheil v Trans Media Productions Pty Ltd [1987] 1 Qd R 199 Surveillance Devices Act 1988, Re; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 Vale v The Queen [2001] WASCA 21; (2001) 120 A Crim R 322 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
"S" (A COMPANY)
Respondent
Catchwords:
Surveillance Devices Act 1988 (WA) - Application for order allowing publication or communication in the public interest - Competing public interests
Legislation:
Equal Opportunity Act 1984 (WA), s 11
Surveillance Devices Act 1988 (WA), s 3, s 5, s 6, s 9, s 24, s 26, s 27, s 31
Result:
Motion dismissed
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Category: A
Representation:
Counsel:
Applicant : Mr W S Martin QC & Ms C Galati
Respondent : Mr R E Birmingham QC
Solicitors:
Applicant : Edwards Wallace
Respondent : Su & Co
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
R v Smith, Turner & Altintas [1994] 63 SASR 123
Ridgeway v The Queen [1995] 184 CLR 19
Sheil v Trans Media Productions Pty Ltd [1987] 1 Qd R 199
Surveillance Devices Act 1988, Re; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246
Vale v The Queen [2001] WASCA 21; (2001) 120 A Crim R 322
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1 LE MIERE J: The applicant has applied for an order under s 31 of the Surveillances Devices Act 1998 (WA) ("the Act") allowing publication of a conversation and activity recorded using a listening device and an optical surveillance device.
2 The applicant is the licensed holder of a commercial television station in Perth. On 20 July 2005 a reporter or producer with the applicant's current affairs programme was approached by a woman who I will call "M". "M" was employed on a casual basis as a receptionist/data input processor by the respondent company. Approximately two months ago she became pregnant. Approximately four weeks ago she informed the company's general manager that she was pregnant. On 18 July the general manager told "M" that after her shift on 20 July the company would be replacing her. She asked the general manager why he was terminating her. According to "M" the general manager said words to the effect that she was a liability because of her pregnancy – that going up and down the stairs to the office was a liability. According to the general manager he said words to the effect that it was an occupational health and safety issue. Both "M" and the general manager agree that he said that he did not have any problems with her work. On 19 July she was given a letter of termination. The letter states that her employment would be terminated as of 21 July 2005 but states no grounds for the termination.
3 Subsequently the producers of the television programme enquired whether "M" would go back to the company with a hidden camera and ask the general manager to explain why she was being let go. "M" agreed to do so. On 20 July "M" went to the company and spoke to the general manager. Her discussion with the general manager was recorded on videotape using the hidden camera.
4 On 22 July 2005 the applicant applied to this Court for an order that it be permitted to broadcast the conversation and activity recorded by the hidden camera. The application was supported by an affidavit sworn on 21 July 2005 by "M" and an affidavit sworn on 21 July 2005 by the executive producer of the applicant's current affairs programme.
5 The application came on for hearing on 3 August 2005. I then ordered that notice of the application should be given to the company and its general manager and adjourned the application to 5 August for that purpose. On 5 August the company and its general manager appeared and were represented by senior counsel. Senior counsel sought an adjournment for the purpose of opposing the application. I adjourned the application to 8 August 2005. On 8 August 2005 the company tendered
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- and relied upon an affidavit sworn by the general manager on 8 August 2005 and an affidavit sworn by its production manager on 8 August 2005. At the conclusion of the hearing I wished to consider the materials put before me but considered that the nature of the application is such that it should be decided expeditiously. Accordingly, I reserved my decision to 10 August 2005.
The Act
6 Sections 5 and 6 of the Act prohibit a person using a listening device or optical surveillance device to record a private conversation or activity, including a conversation or activity to which that person is a party. A private activity is defined by s 3 to mean 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. Private conversation is also defined in similar terms. It is common ground that the conversation and interview between "M" and the general manager was a private activity and private conversation. However, the prohibitions in s 5 and s 6 are subject to a number of exceptions. Subsection 5(3) provides that the prohibition on using a listening device does not apply to 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, 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. Subsection 6(3) is in similar terms in relation to the use of an optical surveillance device. Furthermore, the prohibition on the use of a listening device or an optical surveillance device does not apply to the use of such devices in accordance with Pt 5 of the Act.
7 Part 5, which includes s 26 and s 27, deals with the use of surveillance devices in the public interest. Subsection 26(1) provides that a person who is a party to a private conversation may use a listening device to record the private conversation if a principal party to the private conversation consents to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest. Subsection 26(2) provides that a person who is acting on behalf of a party to a private conversation may use a listening device to record the private conversation if a principal party to the private conversation consents to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest. Subsections 27(1) and (2)
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- contain similar provisions in relation to the use of optical surveillance devices. The words "party" and "principal party" are defined in s 3 of the Act. It is common ground that "M" was a party and a principal party to the conversation and interview with the general manager.
Lawfulness of the Recording
8 The respondent company submitted that the recording of the interview and conversation was unlawful. The respondent submits that "M" does not say in her affidavit that the use of the surveillance devices was reasonably necessary for the protection of her lawful interests and hence s 5(3) and 6(3) do not apply.
9 In my view that is not conclusive of the issue. The relevant requirement of each of par 5(3)(d) and par 6(3)(d) is that the use of the surveillance device was reasonably necessary for the protection of the lawful interests of the principal party, that is "M". That is to be determined by the application of an objective test. I note that during the committee stage of the Surveillance Devices Bill, Mr Kobelke MLA referred to a situation where an employee used a tape recorder to record his conversation with his employer when the employer abused him and told him the grounds on which he was to be sacked – which were not legal grounds for sacking. The Minister in charge of the bill, Mr Prince, said that if the employee's intention was to protect his lawful interests, and he recorded the conversation and did not disclose this use to his employer, he was protecting his lawful interest. In the present case "M" considered that she had been improperly dismissed and wished to protect her lawful interests. In my view her use of a surveillance device to record her conversation with the general manager was reasonably necessary for the protection of her lawful interests.
10 Furthermore the applicant submits that at the time the interview and conversation were recorded there were reasonable grounds for believing that the use of the listening device and optical surveillance device was in the public interest and hence the recording by the hidden camera was lawful, that is it was authorised by s 26(2) and s 27(2). In her affidavit "M" says that she went to the television channel studios and there met with the programme producer. She says that she wants "to bring this matter to light because I think what my employer did was wrong. I want to show other pregnant women that they should not be taken advantage of". "M" also says in her affidavit that she believes "it is important for my story to be told and for the public to see the explanations given by my
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- employer. I have also lodged a complaint with the Equal Opportunity Commission".
11 Subsections 26(2) and 27(2) make it lawful to use a listening device or optical surveillance device if a principal party to the private conversation consents to that use and there are reasonable grounds for believing that the use of the device is in the public interest. In this case the issue is whether or not there are reasonable grounds for believing that the use of the surveillance device is in the public interest. The applicant submits that the test is an objective one. The respondent submits that it is a subjective test. I think the test is an objective one but I do not think it is necessary to decide that issue in this case. "M" used the surveillance device to record the private interview and conversation so that it might be used to inform the public of the explanations given by her employer, to inform the public that what her employer did was wrong and to show other pregnant women that they should not be taken advantage of. I do not have to make any final determination whether or not "M" had reasonable grounds for believing that the use of the surveillance devices was in the public interest. However, the lawfulness of her conduct is relevant to determining whether I should make the publication order sought by the applicant. For that purpose I find that "M" believed that the use of the surveillance devices was in the public interest and she had reasonable grounds for so believing. Objectively, there were reasonable grounds for believing that the use of the surveillance devices was in the public interest. That is not, of course, the same thing as finding that the use of the surveillance devices was in the public interest.
Evidence for Respondents
12 The respondent relies on an affidavit sworn by the general manager and an affidavit sworn by the production manager. The general manager swears that during the course of her work "M" is required to go down and up the flight of steep metallic stairs from the office to the downstairs processing and wholesale floor area approximately 10 to 20 times each day she is working. She may walk through cool rooms where the temperature is maintained between 1.5 to 3.5 degrees Celsius. At times the processing and wholesale floor areas are littered with materials on which a person may slip. Trolleys and forklifts operate at times throughout the day moving large loads. When he learned of "M's" pregnancy the general manager became increasingly concerned for her health and safety in performing her work at the company's premises. Even before her pregnancy the general manager had observed "M" having difficulty from time to time in climbing the steep stairs. She appeared to
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- have breathing problems and had experienced occasional blackouts when she was at work. On one occasion she became so ill while climbing the stairs that she had to hold onto the safety bars to stop herself collapsing before getting assistance from another staff member to get to the office. The general manager swears that as a consequence of his concern for "M's" safety with her pregnancy and her existing medical condition he came to the decision that it was not safe for her to continue to work at the premises.
13 The production manager swears that approximately two months ago "M" told him in front of other staff members that she had a rare medical condition that sometimes causes her to collapse or suffer from blackouts or anxiety attacks. On one occasion he observed her unable to climb up the stairs. She became breathless and sort of collapsed on the step of the metal stairs. She went home shortly afterwards.
14 The company submits that it did not unlawfully discriminate against "M" on the grounds of her pregnancy by dismissing her in contravention of s 11 of the Equal Opportunity Act. The company submits that it terminated "M's" employment due to concerns for her safety in the workplace.
Order allowing Publication or Communication in the Public Interest
15 Section 9 of the Act prohibits a person knowingly publishing or communicating 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. However, s 9(2) provides that the prohibition in s 9(1) does not apply where the publication or communication is made in accordance with Pt 5, which includes s 31.
16 Subsection 31(1) provides:
"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 div 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."
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17 The applicant submits that the publication or communication of the conversation and interview between "M" and the general manager by its broadcast on the applicant's television channel would protect or further the public interest.
Public Interest
18 Section 24 of the Act provides that in Pt 5 public interest includes 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.
19 The public interest is a broad concept. It is used in other legislation and appears in numerous authorities. However, there does not seem to be any one firm definition of the term. The definition in s 24 does no more than indicate some areas in which the public interest operates. The definition does not purport to exhaustively define the concept public interest. Furthermore, concepts such as the economic wellbeing of Australia, the protection of public morals and the protection of the rights and freedoms of citizens are such broad concepts as to require the court to make value judgments as to what furthers or protects the public interest.
20 Matters of public interest cannot, in general, be something that people are merely interested in knowing about. It is a commonplace observation that what "interests the public" is not at all the same as what is "in the public interest".
21 The concept of public interest involves matters that affect a considerable number of people. Where something might affect a single individual, it can be in the public interest if that effect involves some general principle that, in turn, has impact upon a wider population such as conduct that gives rise to issues whether anti-discrimination laws or employment laws are adequate or require review. There is a category of information that the public need to know about what is going on in their society.
Applicant's Submissions
22 The applicant submits that a publication order should be made to protect or further the public interest, as the subject matter of the private conversation involves issues of justice, the protection of the rights and freedoms of citizens and the protection of public morals. The applicant submits that in the recorded conversation, the general manager admits that the company's reason for terminating "M's" employment was as a result of
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- her pregnancy, not due to any performance related issues. The matters raised by the conversation relate to the upholding of the rights of individuals, including the protection of an individual from employers who may unlawfully, act in a way to infringe the rights and freedoms of employees.
23 The applicant submits that the public has an economic and moral interest in women's rights and independence, equal access to employment and appropriate working conditions. The economic wellbeing of the nation is served by female participation in the workplace, including during pregnancy.
24 The applicant submits that a publication order would help protect the rights and freedoms of members of the Australian public by educating employees and employers about rights and obligations under occupational health and safety and anti-discrimination legislation. Further, the timing of any publication of such an item would coincide with the current political debate regarding the Commonwealth Government's proposed modernisation and liberalisation of the Australian workplace through major industrial relations law reforms. These reforms include the exemption of small business from unfair dismissal laws. The Commonwealth Government recognises the public interest in this debate and has embarked on a reported $20 million national television, newspaper and radio advertising campaign.
Respondent's Submissions
25 The respondent submits that a publication order has the direct effect of a violation of another's right to privacy, and hence the exercise of discretion to make a publication order under s 31 of the Act will require a balancing between the interests of the individuals affected by the disclosure and the common good. It is submitted there should be a presumption against disclosure and disclosure should not lightly be permitted – it necessarily involves the violation of an important right.
26 The respondent submits that the conduct of "M" and the applicant involves a serious breach of the respondent's rights. It is a breach that has been compounded by their deceptive conduct. On the pretext of "M" seeking an explanation that had already been provided to her by the general manager the applicant engaged in a process of entrapment. It is submitted that the conduct of "M" was dishonest insofar as she then knew why she had been dismissed. The purpose of her recording the conversation was to sensationalise it and not for any specific benefit to the public.
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27 The respondent submits that the employment relationship between "M" and the company does not imperil or set back any matter of public interest. The mere fact that the public may be interested in the story – particularly if it is sensationalised by the use of a hidden camera – as if there is something to hide or that it is evidence that would not have otherwise been obtained – does not affect a matter of public interest. The respondent submits that so far as "M" is concerned, the recording and its publication are directed at protecting or furthering her private interests, not the public interest. Insofar as the applicant is concerned, the respondent submits that its motivation in seeking an order to publish the interview is to sensationalise the story not to further the public interest.
28 The respondent submits that publication of the interview is not reasonably necessary to protect or further the public interest in promoting an awareness of the existence and effect of the relevant anti-discrimination laws and a public debate over the dismissal of pregnant women on the grounds of health and safety.
Section 31(1)
29 Section 31(1) of the Act confers upon a Judge the discretion to make a publication order if the Judge is satisfied that the publication should be made to protect or further the public interest. Accordingly, I must determine whether I am satisfied that the conversation and interview recorded should be published to protect or further the public interest. If I am so satisfied I must determine, as a matter of discretion, whether to make a publication order.
30 There may be a public interest or benefit in the publication of the interview in the sense that it tends to protect or further the economic wellbeing of Australia and the protection of the rights and freedoms of citizens in the manner outlined by the applicant to which I have already referred.
31 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.
32 Senior counsel for the applicant, Mr W Martin QC, submitted that not to permit the publication of the interview is a restriction on freedom of speech. I do not agree. The essential thrust of freedom of speech is to prohibit restraints on voluntary public expression of ideas, it protects the
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- person who wants to speak or publish when others wish him to be quiet. There is necessarily, and within limits, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect. Section 9 of the Act protects that interest by encouraging the uninhibited exchange of ideas and information among private parties. The fear of public disclosure of private conversations might well have a chilling effect on private speech. In a democratic society privacy of a communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech might be recorded and published by another, even without the reality of such activity, might have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.
33 In this case there are important interests to be considered on both sides of the public interest calculus. I turn to consider the strength of the competing public interests in this case.
Some Specific Considerations
34 The lawfulness of the company's conduct in dismissing "M" is an important issue. The applicant submits that the conduct was unlawful and it is in the public interest that that wrongdoing should be exposed. The applicant submits that the general manager's affidavit discloses that he dismissed "M" because she was pregnant and he believed that it was unsafe for her to work on the company's premises when she was pregnant. The applicant submits that the general manager maintains that the company's conduct in dismissing "M" for those reasons is not unlawful. The applicant submits that such conduct is unlawful because it contravenes s 11 of the Equal Opportunity Act (WA). The applicant further submits that publication of the respondent's conduct and their wrongful belief that such conduct is not unlawful is in the public interest because equal opportunity and unfair dismissal issues are matters of public interest and it is in the public interest that those issues should be publicly debated.
35 There may well be proceedings in the Equal Opportunity Tribunal or elsewhere in which the lawfulness of the company's conduct will be determined. This Court should not make a final determination of the lawfulness of that conduct on the limited materials before it. However, I must evaluate the conduct of the general manager and the company as a step towards determining whether I am satisfied that the publication of the interview by television broadcast should be made to protect or further the public interest.
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36 The video does not record unlawful conduct. The unlawful conduct, if any, was the termination of the employee's employment that occurred on 18 July. However, the video is or may be evidence from which it may be inferred that the company acted unlawfully.
37 The applicant submits that the inference to be drawn from the video recording is that the company terminated "M's" employment because she was pregnant, that is the company discriminated against her on the ground of her pregnancy. Section 11 of the Equal Opportunity Act 1984 (WA) provides that it is unlawful for an employer to discriminate against an employee on the ground of the employee's pregnancy by dismissing her. On the other hand the company submits and has led evidence that "M's" employment was terminated on grounds other than that she was pregnant. As I have said the evidence of the general manager is that he decided to terminate "M's" employment due to concerns for her safety in the workplace.
38 On the materials before the Court there is a strong case that the company unlawfully discriminated against "M" and contravened s 11 of the Equal Opportunity Act 1984 (WA). However, that conclusion is based upon an interpretation of the way the general manager has expressed himself in his affidavit. The respondent company maintains that it did not dismiss "M" on the ground of her pregnancy and did not contravene s 11 of the Equal Opportunity Act 1984 (WA). The question is ultimately one of fact that should be determined after a consideration of all the relevant evidence, including any cross-examination of relevant witnesses.
39 Exposing crime or serious misdemeanours is in the public interest. As I have said, on the materials before the Court there is a strong case that the respondent company acted unlawfully in dismissing "M". However, the company denies that it did so and the issue is yet to be determined by the Tribunal established for that purpose.
40 If the company did unlawfully discriminate against "M" it was not motivated by some malicious or base intent. The general manager made the decision to terminate "M's" employment because he considered her continued employment on the company's premises was a risk to her health and safety. As I have said, a person living in Australia has an expectation that private conversations and activities will not be published to the public at large. That expectation may be conditional at least to some extent upon the person's behaviour. A person who engages in unlawful conduct should expect that his wrongful activities may not remain private. However, the general manager did not believe he was engaging in
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- unlawful conduct. That does not prevent the company's conduct from being unlawful but it is relevant in considering whether it is in the public interest that the private conversation be published to the public at large.
41 Mr Martin QC submitted that the interview is concerned with the company unlawfully discriminating against and dismissing "M" and those matters gives rise to issues concerning equal opportunity and unfair dismissal laws. Mr Martin submits that those issues are matters of public interest and that it is in the public interest that they be publicly debated.
42 I accept that those are matters of public interest. I also accept that promoting debate on those subjects is in the public interest. However, the applicant may broadcast "M's" story and promote debate on those issues without publishing the interview and conversation between her and the general manager. The conduct of the respondent and general manager recorded on the videotape is not unlawful conduct, at most it is evidence from which it might be inferred that the company had engaged in unlawful conduct when it dismissed "M". I am aware that television audiences look for more than the public interest, they also look for material in which they are interested. The video recording would add to viewer interest in the story. I accept that publication of the recorded interview does not cease to be in the public interest because the applicant could broadcast a story about the unlawful termination of the employee's employment without broadcasting the recorded interview. However, the public interest in the publication of the recorded interview is much less where the recording itself does not record unlawful conduct and "M's" story may be published without the recording.
43 The public interest is an illusive concept. In determining whether the broadcast of the recorded interview protects or furthers the public interest I am called upon to make a value judgment. Where, as here, there is a public interest in broadcasting the recorded interview and a public interest in maintaining the privacy of the general manager by not broadcasting the interview, the court must weigh the competing public interests. I conclude that the balance comes down in favour of not authorising the broadcast. I am not satisfied that the publication should be made to protect or further the public interest.
Alternative Approach
44 Mr Martin QC submitted that for the purposes of s 31(1) of the Act the right of privacy is not a right or freedom the protection of which falls within the public interest. I disagree. In my view the public interest which the Court must consider when determining an application under
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- s 31(1) of the Act includes the protection of the privacy of communication.
45 If I am wrong in that construction of the Act then I consider that the right or interest of privacy is a matter properly to be taken into account by the Court in determining whether or not to exercise the discretion whether to make a publication order if the Judge is satisfied that publication would protect or further the public interest. In this case I determine to exercise my discretion against making an order that the applicant may publish or communicate the recorded conversation and interview. In doing so I take into account the public interest in protecting the privacy of the general manager's conversation and the damage that is likely to be done to the general manager and the company by publication of the interview.
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