Farm Transparency International Ltd & Anor v State of New South Wales

[2022] HCATrans 6

[2022] HCATrans 006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S83 of 2021

B e t w e e n -

FARM TRANSPARENCY INTERNATIONAL LTD (ACN 641 242 579)

First Plaintiff

CHRISTOPHER JAMES DELFORCE

Second Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON FRIDAY, 11 FEBRUARY 2022, AT 10.01 AM

(Continued from 10/2/22)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Solicitor-General for the Commonwealth?

MR DONAGHUE:   Thank you, your Honour.  Your Honours, I had reached to paragraph 8 of our written outline, and I was addressing Chief Justice Gleeson’s analysis in Lenah Game Meats, concerning the operation of the principles concerning breach of confidence in respect of private information.

If your Honours could take up that case again. It is volume 2, tab 15, 208 CLR 199. Your Honours will recall I had taken you to paragraph 39, where in the context of explaining why it was not necessary to develop a tort of invasion of privacy, his Honour the then Chief Justice had made the point that:

If the activities filmed were private, then the law of breach of confidence –

by which, we submit, his Honour meant the existing law of breach of confidence would be:

adequate to cover the case.

His Honour then went on in the judgment to consider the meaning of “private”, as he is using it there, noting, at the bottom of that page, in paragraph 41, the “lack of precision” in the concept, which was part of the reason for not developing a new tort.  And then, in paragraph 42, his Honour made the point that:

There is no bright line ‑

Mr Sexton yesterday read to your Honours the first half of that paragraph, and I will not repeat it, noting some of the limits, it not being enough that the activity occurs on private property, for example.  But in the second half of paragraph 42, the Chief Justice identifies, as we read his Honour’s judgment, the kinds of information that he does have in mind when he refers…..of private information back in paragraph 39, so:

Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved.  The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.

So, that seems to be what his Honour had in mind in identifying the kind of sphere of information that may be protected by an existing claim in breach of confidence, even independently of an established relationship of trust or confidence.

His Honour then explains in paragraph 43, particularly at the top of the next page, 221, that the problem that Lenah confronted was that the activities filmed and observed, in that case in the abattoir, were not private in the sense just described; that is why Lenah lost.  We accept that that kind of reasoning would tend to show – as indeed does the result in Lenah – that a breach of confidence action would not cover activities of the specific kind in which the second plaintiff has engaged and wishes to engage in that case.

But we do make the point that that falls a long way short of demonstrating that breach of confidence is not relevant to the assessment of incremental burden because, as your Honours have explained on many occasions, the analysis required by the implied freedom calls for an identification of the burden imposed by section 11 on political communication generally, rather than just upon the particular operation in respect of which the communication in which the plaintiffs wish to engage.

So it is very distorting of the analysis to focus just on farm trespass or on the so‑called “ag‑gag”, as the plaintiff puts it, as if that is the only burden under a section 11 that your Honours are concerned with.  In our submission, in a great many of its operations, section 11 will not impose any burden over and above that which arises from breach of confidence principles as explained…..If one imagines, for example, an optical surveillance device in the private offices of a person or in a company boardroom or in a Cabinet room, hotel rooms, private bedrooms, private homes more generally, one would expect that in all of those circumstances the kind of privacy, as I think some of your Honours put it yesterday, the narrower sort of personal privacy interests that his Honour is describing in paragraph 42, would seem to be engaged. 

GLEESON J:   Mr Donaghue, is it not the case though that it is still necessary here to recognise that section 11 goes far beyond questions of political communication and to a large extent its operation in relation to the private sphere probably does not relate to communications that could be regarded in any way as political?

MR DONAGHUE:   Your Honour, certainly that is sometimes true, and all I am seeking to do by way of these submissions is to endeavour to assist your Honours to identify the incremental operation of section 11 that requires justification.  Now, as your Honour puts to me to the extent that section 11 is covering information that is not political, then that would be the end of the inquiry, so we can carve all of that out.  But then there might be categories of information as well where it might commonly be the case, for example, that what politicians say in the privacy of their own homes about one another, both their opponents and their colleagues, would be information that would be captured as political communication that would be covered by the implied freedom.  But it would also, in my submission, be captured by breach of confidence principles and so one does ‑ ‑ ‑

EDELMAN J:   Mr Solicitor, on what principle does one draw the divide between those situations that fall within what Chief Justice Gleeson described as “contemporary standards of morals and behaviour” by which a person would understand activity to be meant to be unobserved, such as some of the examples that you have just given and, on the other hand, situations such as mistreatment of animals in an abattoir which his Honour is assuming would not fall within that test.  What is the principle by which one draws the line?  Is it human dignity?

MR DONAGHUE:   Your Honour, can I say two things.  The first thing – and this is not by way of avoidance, or not intended by way of avoidance, your Honour – is that one of the difficulties with the submissions I am making particularly on this point, but even more so the submissions that I am about to come to about Lincoln Hunt is that there are important legal issues about the protection of privacy in play that have been lurking in the background for quite some years and that have not finally been decided by this Court, and this case seems an inappropriate vehicle for the final resolutions of issues of that kind, given that there has not really been the kind of argument that your Honours I think would expect to be assisted by developing all of those principles, even though the content of the principles is relevant to the legal analysis that your Honours are engaged in for the reasons that I am developing.  So it is a little bit difficult to reach a final landing on those principles in the context of a case of this kind.  That is my first ‑ ‑ ‑

EDELMAN J:   On the other hand, on one view it is necessary to determine exactly what the burden is, without making various assumptions about what the burden might be, in order to engage in questions of what was reasonably necessary and what is adequate in the balance.

MR DONAGHUE:   Your Honour, I accept the force of that.  In the end, the way that we seek to navigate that is by saying that whatever the precise boundaries of the principles might be, there is a very significant subtraction from the apparent burden on the face of section 11 and, having subtracted that very significant amount from the burden, what you are left with is readily seen to be justifiable without drawing the line precisely.  So, that is the way that we are inviting your Honours to approach it.

KIEFEL CJ:   Mr Solicitor, the wider discussion that you are talking about that has not occurred in this case, would that include a distinction, perhaps, between what is generally recognised as a private matter and a person’s desire to keep something secret?  That is privacy and secrecy, I suppose.

MR DONAGHUE:   Yes.  Your Honour, what I was seeking to do is, by reference to the Chief Justice’s discussion – and I am about to take your Honours in a moment to the joint judgment of Justices Gummow and Hayne with whom Justice Gaudron agreed – was to say that there is, in already existing principle in the area of breach of confidence law, a recognition of an area of core‑type private activity that is covered or protected by existing breach of confidence principles and that that is clear and then to identify a number or an area where the law may be developing or extending which is not clear and that has the problems of the kind that Justice Edelman raised with me.  Whether that line is between private things and things that a person would wish to keep secret is, perhaps, more difficult.

I think – certainly, applying Chief Justice Gleeson’s approach – there is a difference.  People may wish to keep secret everything that happens on their private property, but they will not necessarily be entitled to, as the result in Lenah Game Meats showed.  But certain things that they wished to keep secret because they have an inherent aspect of privacy of the kind that his Honour was describing in the second half of paragraph 42, will be protected by the existing law, as we see it.

KIEFEL CJ:   Mr Solicitor, are you proceeding upon the assumption that the activity referred to in section 11 – that section 11 is to be read with section 2A(c), so that the activity relates to privacy because the Solicitor‑General for New South Wales seemed to say that that was not a requirement of section 11, the activity did not have to partake of a private nature to be protected by section 11.

MR DONAGHUE:   Your Honour, I do not disagree with the New South Wales Solicitor’s submissions on that point.

KIEFEL CJ:   Construction, yes.

MR DONAGHUE: The construction point. So, when section 11 speaks – uses the word “private conversation or a record of the carrying on of an activity”, “private conversation” is a compound phrase, the defined concept that is the subject of section 7. The activities recorded under section 8 are private in the sense that they must have been recorded as a result of a trespass so they occurred on property to which people are not entitled to access without the consent of the owner or occupier but not private in a wider sense and that is why there is the category of conduct that led to the failure of Lenah’s claim because the fact that a trespass had occurred and that activities that occurred on private property had been filmed was not sufficient to bring it within breach of confidence principles.

GAGELER J:   Mr Solicitor, if you are going to develop this submission on breach of confidence, I would be assisted if you could give us your submissions on three subtopics.  One is the point made by Chief Justice Gleeson introducing a discussion that you have just taken us to.  It is at the end of paragraph 20, where he made the point by reference to Lange that:

the common law of Australia –

and, obviously, he is including equitable principle:

conforms to the Constitution –

and, in particular, to the freedom of political communication.  That is point 1.  Points 2 and 3 are, perhaps, in light of that but independently, what do we make, for present purposes, of what is traditionally referred to as the “iniquity” exception or carve‑out for confidential information and, secondly, of the discretionary nature of the equitable remedies that are always involved in an action for breach of confidence?

MR DONAGHUE:   Thank you, your Honour.  Can I take ‑ ‑ ‑

EDELMAN J:   Mr Solicitor, perhaps I could add my question, because it dovetails with the first question that Justice Gageler asked you, which is whether at the core of the development that the Chief Justice was contemplating is the point that he makes at paragraph 43 that:

the foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity.

MR DONAGHUE:   Yes, your Honour, I did not get to the second part of my answer to your Honour’s question but, having said what I said about how the issue arises, I do not quibble with that idea and, indeed, in paragraph 126 of Justice Gummow and Hayne’s judgment they also are emphasising personal autonomy, particularly in the context of explaining why corporations are different, why they do not have that same aspect.  So I do not disagree that underlying the core of his Honour’s concept as explained in paragraph 42 is an emphasis on personal dignity and autonomy.  As to your Honour Justice Gageler’s ‑ ‑ ‑

GORDON J:   Mr Solicitor, can I just add one question to that as well, which is in effect the flipside of that.  Here we are dealing with legislative power and not individual right.  Is another way of looking at the way in which you are putting the argument ‑ I just want to check whether I understand it ‑ is that whether or not the current law, whether it is a law of privacy, confidentiality or otherwise…..on the action of, for example, the first plaintiff, may or may not be open, but what one sees here in a sense is Parliament legislating a statutory tort itself in order to protect.  Whether it is seen as privacy, human dignity or otherwise, it is possibly both, in a way in which the common law has developed it.  I say that for this reason.  Someone is switching papers which is making it difficult to hear.  I do not know whether it is at your end, Mr Donaghue.

MR DONAGHUE:   I am sorry, your Honour, that was me, I apologise.

GORDON J: It seems to me that the consequence otherwise would be that it would not be possible or beyond legislative power to criminalise this conduct. We accept that is the argument. But is it beyond the power to create in a sense a statutory tort of privacy to the extent to which it has when you recognise this little bit ‑ or what you describe as the incremental burden against the provisions or the laws that are currently in place? I say that because it would mean I think – I notice we have just lost the Solicitor‑General for Western Australia – that the consequence of the argument would possibly be that, for example, the Telecommunications Interception Act would prohibit and be invalid to the extent that it prohibited publication of intercepts if the intercepts were of a political issue or concerned political communication. So rather ‑ ‑ ‑

KIEFEL CJ:   Mr – I am sorry, Justice Gordon.

GORDON J:   I apologise.

KIEFEL CJ:   I am sorry, I did not mean to cut you off.  Have you finished your inquiry of the Solicitor‑General?

GORDON J:   I have, thank you.

KIEFEL CJ:   Thank you.  We have the Solicitor‑General for Western Australia back.  We lost you.  Did you lose audio, Solicitor‑General for Western Australia?  Can you hear us, Mr Solicitor?  Solicitor‑General for Western Australia, can you hear us?  The Court will adjourn until we re‑establish the link?

MR THOMSON:   Your Honour, I can.

KIEFEL CJ:   I am sorry, you can hear us?

MR THOMSON:   Yes, we were on mute.  We seem to have lost audiovisual on our large screen, but it has come onto our small screen, so we can continue.  I apologise, I had lost audio at the point where Justice Gordon was asking about statutory torts, but I do not think that we would require the Court to go back over that.  I apologise for the interruption.

KIEFEL CJ:   Thank you, for that.  You will be speaking after the Solicitor‑General for the Commonwealth.  Would you prefer us to pause at that point so that you can re‑establish a proper pane?

MR THOMSON:   I think it is suitable in any event because we have a small screen that we can see the Court on.

KIEFEL CJ:   Yes, very well.  Solicitor‑General for the Commonwealth, you have got a number of questions ‑ ‑ ‑

MR DONAGHUE:   I do have a number of questions that I will endeavour to field.  Your Honour Justice Gageler, if you forgive me for a moment, I will come back to your questions in a moment if I could deal with your Honour Justice Gordon’s question.

My short answer is that we certainly do not accept that it would be beyond the power of the Parliament to – leaving aside here the power questions for the moment, if we are talking generally about Parliaments within Australia – to create a tort of the kind that your Honour describes.  It may well be that such a tort will need to be analysed and survive attack against the implied freedom of political communication.  So, one would need to be able to justify that law to the extent that the burden is thereby imposed.

But, in our submission, when one looks at this particular law, much of what one sees as an incremental burden comparing the section 11 read with section 8 to the breach of confidence principles, is in effect Parliament saying, in addition to the core area of personal privacy or dignity that one sees protected by breach of confidence, we are going to adopt a wider principle of privacy protective of people’s property interests in their own – so that to the extent that you are entitled to exclude intruders, your privacy – the sphere of privacy is expanded to align with that wider conception. That is a broadening, at least in comparison with the tort of breach of confidence.

GORDON J:   So, do I understand that to mean that the statute has done in the sense what Commonwealth may not have done in relation to the tort of privacy, but done so in a very limited manner, is the way in which you put it?

MR DONAGHUE:   That is correct, your Honour, and that that, if the comparator is only breach of confidence, is the incremental burden to be justified.

Your Honour Justice Gageler, taking your three questions in turn.  In respect of the Chief Justice’s introductory proposition at paragraph 20 on the Lange idea, we of course accept that the common law – including equitable principles within that concept – cannot operate inconsistently with the Constitution, and certainly that could have both a positive and a negative effect.  It cannot be developed in a way that would be inconsistent with the Constitution – that is the negative – and the positive is that it might need to be developed in a way that removes any inconsistency which is, I think, probably closer to what was involved in Lange – an affirmative development of the line with the implied freedom.

We submit though that it has not been suggested by anyone in this case – unlike the scenario in Lange – that the law of breach of confidence is not in alignment with constitutional principle.  Unless and until that is suggested, it is not necessary for the Court to embark on the question of whether it needs to modify that existing body of doctrine in order to align with constitutional law.

As to the inequity point, we accept that as a matter of equitable doctrine, it does appear to be the case that, where information would disclose an inequity, it will not have – it is deemed not to have the quality of confidence that would be necessary in order to…..breach of confidence principles.  We think that that was the analysis Justice Gummow adopted in Corrs Pavey Whiting as a member of the Federal Court; I do not have the citation to hand.

But to that extent, there would be some limit on the equitable principles that I have been addressing – not one I accept that we have explored in any detail – and I suppose it might be said that to the extent of that carve‑out, there is some greater difference between equitable principle on the one hand and section 11 on the other. I would add in that regard though that, if one is to engage in a comparison of that kind – and I am helpfully advised that the citation of the case I just mentioned is (1987) 14 FCR 434, particularly at page 456.

If one is lining up equitable principle minus iniquities with section 11, one should bear in mind that section 11 – in its operation with respect to section 8 – also has a number of exceptions because the limits in section 8 include exceptions that permit optical surveillance devices to be used for a range of purposes that would overlap with purposes going to the detection of iniquities. So, one can use devices pursuant to warrants of various kinds in order to seek to detect breaches of the law and other matters of that kind by reason of the exceptions in section 8(2)(d), for example:

the installation, use or maintenance of an optical surveillance device by a law enforcement officer in the execution of a search warrant or crime scene warrant –

There are a number of quite detailed provisions there.  Again, I am not suggesting exact overlap but it would only be to the extent that someone was seeking to protect an iniquity – and, obviously, the implied freedom is not going to give them authority to do so by ignoring the property rights of others by trespassing upon their property – but it would only be to the extent that someone could properly be seeking to gather information of that kind that fell outside of those kinds of accepted purposes that there would be a disconnect.

As to the discretion, your Honour I think I have to accept that that is a difference. So, obviously, the effect of section 8 and 11 together is not discretionary and in equity it is but, in my submission, while that is a difference, it is not one that is likely to make a great difference to the size of the burden if one can establish the kind of privacy interest that Chief Justice Gleeson was referring to in Lenah, while it is possible that relief might be refused for discretionary reasons, one would not expect that, ordinarily, to occur.

EDELMAN J:   But, Mr Solicitor, that discretion that you are talking about, that is a remedial discretion, not a discretion as to whether the conduct itself is lawful.  As to the conduct itself, what do you mean by the carve‑out or the exception for iniquity?  Are you confining it to the Gartside notion of a crime or a fraud or does an iniquity extend beyond crime or fraud to any tortious conduct? 

MR DONAGHUE:   Your Honour, I was using it in the crime or fraud sense but I accept that, perhaps, I would need to develop that submission or detail in it.  I am sorry if that is not helpful.  That was the sense that I had in mind in answering the question.  I believe that Justice Gummow might frame it more widely in…..

Your Honours, can I turn back to Lenah, if I might, because having discussed breach of confidence principles in the ways that your Honour has seen, the Chief Justice then turned, at paragraph 50 of his reasons, specifically to the question of the relevance of trespass to the possibility of then prohibiting publication of the product of the trespass and did so by reference to a number of cases, the most famous of which is Lincoln Hunt v Willesee.

Your Honours may recall that in that case which was factually involving a trespass with the cameras rolling so as to gain footage for use on a current affairs program, Justice Young, as his Honour then was, analysed whether or not relief would be available to restrain the use of that footage and expressed the tentative view – tentative, in the end, because damages were held to be an adequate remedy so no injunction issue – that an injunction would issue in circumstances – and you can see the quote – I will not read it – at the bottom of paragraph 51.

But importantly, in the way that his Honour framed the principles there, where footage was taken as a result of the trespass, his Honour thought that it was not necessary for the information filmed to be private or confidential if the use of the information would nevertheless be unconscionable.  What the Chief Justice said about that at paragraph 52 is that in the case of:

a party to the trespass, it would be necessary to reach a conclusion –

and the answer I would give was that the injunction would issue, but his Honour framed it or re‑explained the result in Lincoln Hunt as:

based on breach of confidence, provided the activities filmed were private.

So, in effect, his Honour subsumed Lincoln Hunt into the earlier discussion of breach of confidence principles that he had undertaken.

KIEFEL CJ:   Mr Solicitor, Lincoln Hunt I think was raised and argued and I think referred to in judgments in Smethurst.  I do not think it could be said that a majority of this Court has followed it.

MR DONAGHUE:   No, your Honour, you anticipate my very next remark, which was to interpolate into my discussion of Lincoln Hunt, Smethurst where your Honour, together with Justices Bell and Keane and Justice Edelman all discussed Lincoln Hunt.  Your Honours in the plurality judgment – I do not know that I need you to take up Smethurst 94 ALRJ 502, but if your Honours wish to do so, it is in volume 8, tab 55.  Your Honours in the plurality, having discussed Lincoln Hunt and noted that there was some doubt about it, at least the principal foundation for it, at the end of that discussion at paragraph [88] in the plurality judgment under a heading “An invasion of privacy?” made the point by reference to the passage in Chief Justice Gleeson’s judgment that I just mentioned that Chief Justice Gleeson ‑ your Honour said:

It is noteworthy that in Lenah Game Meats Gleeson CJ considered that the question stated by Young J in Lincoln Hunt, as to whether the circumstances made publication unconscionable, could be answered in the affirmative “provided the activities filmed were private”.

Footnoting paragraph 52 of Lenah.  So your Honours, as I read the judgment at least, in our submission, are emphasising that at least insofar as it has the privacy foundation, your Honours appear to be agreeing with what the Chief Justice there said, accepting that Justice Young put the proposition rather more broadly in Lincoln Hunt.

If your Honours have taken up Smethurst, your Honour Justice Edelman looked at this question in some detail, particularly at paragraphs [243] and [244], and your Honour in [243], leaving open whether the result “can be explained on another basis”, referring to the explanation given by Justices Gummow and Hayne that perhaps copyright provided a more satisfactory doctrinal foundation for the result, but leaving that aside you said:

Young J recognised a prima facie case was essentially based upon an extension of the protection of confidential information to the protection of private information, thus anticipating the incremental extension of existing causes of action as contemplated by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.

In the footnotes to that observation about private observation, your Honours cited Giller v Procopets that your Honour mentioned yesterday and the Naomi Campbell cases.  Giller, your Honours might recall, was a sex tape‑related case where Justice Gillard took the view that on any view what was involved was a private matter and would clearly have fallen within the kind of formulation that the Chief Justice set out.

There are other cases in that same line, Stephens v Avery, which is cited in Giller, which is an oral account given to a newspaper of a sexual relationship where again breach of confidence principles have been applied at least in the sphere of private information so understood by the Chief Justice.

If I could ask your Honours – and I am nearly finished with Lenah – to jump back to Lenah Game Meats at paragraphs 53 through to 55, his Honour the Chief Justice there discusses another case, Donnelly, where a video was taken by police recording the plaintiff in his underpants in his bedroom in the course of executing a search warrant, and the issue was whether that tape, having found its way into the hands of a television broadcaster, it could be broadcast.  The answer was that it could not.  Even though the information was not confidential, it was private or humiliating in the circumstances and breach of confidence principles extended in Donnelly approved by the Chief Justice to preventing publication of information of that kind.  It had, his Honour said:

the necessary quality of privacy to warrant the application of the law of breach of confidence.

Reading there from paragraph 54.

GAGELER J:   Mr Solicitor, before you leave Chief Justice Gleeson’s judgment, would you turn back to paragraph 31, please?

MR DONAGHUE:   Of course, your Honour.

GAGELER J:   One of your predecessors put a number of submissions there.  I am particularly interested in submission number (3).  Do you adhere to that or has the Commonwealth position changed?

MR DONAGHUE:   No, your Honour, I have no instructions that the Commonwealth position has changed but paragraph (3) is to be read in the context of paragraphs (1) and (2) and paragraph (2), in particular, is recognising the breadth of the principle identified in Lincoln Hunt, so it is not talking just about equity restraining breaches of private information, it was extending to a wider category of information that was obtained following a trespass on the basis of tortious, surreptitious or otherwise improper behaviour and that would be an extension of the existing law of breach of confidence to recognise, really, the full breadth of the principle in Lincoln Hunt, and recognising that extension paragraph (3) then accepts that that development of the law would need to – consistently with your Honour’s first question to me earlier – develop consistently with the implied freedom.  Paragraph (3) is an attempt to make sure that the law does develop in a way – if your Honours went down that path – that does not strike an improper or an indefensible balance by reference to implied freedom concepts.

In order to finish with Lenah, your Honours, and really to return to the Chief Justice’s question about how Chief Justice Gleeson’s analysis sits with the existing law, could your Honours turn to the joint judgment of Justices Gummow and Hayne, with whom Justice Gaudron agreed, at paragraph 123?  I will need to take your Honours back a couple of paragraphs, but you will see there that their Honours are making a point about Australian law by comparison with a position reflecting American law, one of the four invasions of privacy to which reference has been made.

The four categories that their Honours are drawing a comparison with appear in paragraph 120, which is a long paragraph a couple of pages earlier, and they are drawn from the secondary statement of the law of torts, which is said to provide the best and authoritative treatment of the topic of privacy in US law.  That is the opening sentence of 120.

There are then four categories, the most relevant of which is the third near the top of 254:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a)      would be highly offensive to a reasonable person, and

(b)      is not of legitimate concern to the public.”

Lenah submitted that the first and third categories supported the development of an invasion of privacy tort.  Their Honours are, in 123, explaining, in part, why that is not necessary, and they say:

in Australia, one or more of the four invasions of privacy, to which reference has been made . . . would be actionable at general law under recognised causes of action.

That is pre‑existing causes of action.  Then, there are a number of different causes of action listed, including:

confidential information and trade secrets (in particular, as extended to information respecting the personal affairs and private life of the plaintiff –

with a footnote to Breen v Williams.  I will not take your Honours to Breen.  It is a judgment of Justice Gummow in that case and the relevant two sentences are:

In equity, misuse of confidential information may be restrained.  The subject matter is not confined to trade secrets.

His Honour said:

It extends to information as to the personal affairs and private life of the plaintiff, and in that sense may be protective of privacy.

There are citations given to a number of authorities, including Stephens v Avery which I mentioned earlier.

So, as we read their Honours’ judgment, that reflects a view of the existing law of the breach of confidence that at least reflects the same idea as is developed in more detail by Chief Justice Gleeson about the role of breach of confidence having already been extended to information respecting the private life or personal affairs of a plaintiff.

To that extent, we submit that there is an existing body of law that provides a baseline against which the incremental effect of section 11 should be assessed. And pausing there to identify that incremental burden, we submit its principal elements are that section 11 imposes a burden upon: one, information obtained as a product of trespass; two, that bears upon governmental or political matters, as broadly understood; and three, that even though it is occurring on private property, is not private, in the sense that the Chief Justice described in paragraph 42.

So, while that is a burden, in our submission, it is a burden on a very particular category of information, not properly described as greater or extensive in the way that the plaintiff does, but on the contrary, as slight, in the context of political communication generally.

GAGELER J:   Mr Solicitor, just to understand your submission, you took us to a passage at paragraph 120 from one of the American restatements, which has two elements, (a) and (b).

MR DONAGHUE:   Yes.

GAGELER J:   (b), you perhaps did not emphasise, does that reflect our law?  To be taken from this judgment to reflect our law?  And irrespective of that, does it reflect our law?

MR DONAGHUE:   Your Honour, as to the first, no, because the comparison that was being drawn was not at that level of specificity.  Having identified four categories, all their Honours say is that in many instances what is covered by those paragraphs of the American restatement would be actionable under Australian law.  I only took your Honours to those American principles because they…..to make sense of what was being said by their Honours in 123.

But the point I was seeking to have your Honours draw from it is what their Honours said about what is already actionable at general law in Australia.  In my submission, at general law in Australia, breach of confidence principles at the moment do not contain a principle that says, is it of legitimate concern to the public?  That is not a component of those principles as they would ordinarily be formulated.

It might, I suppose, be something that would be taken into account in the exercise of judicial discretion if it was said to be the position that the burden imposed by a breach of confidence on political communication could not be warranted – that was, I think, how Justice Kirby analysed the matter in Lenah, but not how anybody else did, as I read the judgment.

GAGELER J:   Consistently with the submission of your predecessor, which is recorded at paragraph 31(3), it would also be taken into account in determining whether the proposed publication is unquestionable.

MR DONAGHUE:   Yes, but that is only a question that one asks on the extended Lincoln Hunt understanding rather than in a traditional breach of confidence action.

EDELMAN J:   One difficulty with the extended Lincoln Hunt understanding is that in cases like Tanwar Enterprises v Cauchi, this Court has said that statements – and in Garcia v National Australia Bank – statements as to whether something is unconscionable are statements of a conclusion, not of a process of reasoning.

MR DONAGHUE:   I accept that, your Honour.  Lincoln Hunt was criticised there and also in Smethurst, I think, on the basis that unconscionable does not really explain the governing principle that would assist in working out the boundaries of that extended principle.

I am conscious that I am taking much of your Honours’ time but really my submissions on Lincoln Hunt, which is at the heart of what is in paragraph 9 of the outline, is that that is an area unlike the area that I have been addressing your Honours on so far, where we really do seem to be in the category of an extension of the law, which is presently in an uncertain state.

So, we have given your Honours an extract in volume 11, tab 61 of the current edition of Meagher, Gummow and Lehane’s Equity.  They express – and it might be worth your Honours taking that up – it is on the last page of the extract at tab 61.  In one paragraph their Honours treat Lincoln Hunt as the law.  So, they say another issue that is:

raised by modern ‘investigative’ media.  The cases dealing with the matter seem to decide that the jurisdiction to grant an injunction against trespass extends to granting an injunction against the products of trespass.  Thus, where trespassers intrude on one’s property and take films in the process, the jurisdiction extends to restraining the publication of those films, whether or not they constitute a breach of any duty of confidence.

So, the learned authors of that work, 14 years after Lenah Game Meats and well after Lincoln Hunt, regarded that as an accurate statement of the law, but we accept that there is room for debate about that, and in this Court in Smethurst, since that was written, some doubts were expressed upon it.  In Lenah itself Justices Kirby and Callinan not only expressly endorsed Lincoln Hunt, but would have extended it, not just to the trespasser but to anyone who knowingly seeks to exploit the fruits of the trespass.  That extension is controversial, and whether or not the information needs to be confidential or not might also be seen to be controversial.  Certainly, the plurality judgment in Smethurst suggesting a confinement, perhaps to privacy. 

So, there is, in assessing the incremental burden, both the existing bedrock of breach of confidence law and then a penumbra where the law may or may not extend as the learned authors of Meagher, Gummow and Lehane would suggest.  If Lincoln Hunt were to be embraced in its full operation, or indeed, extended, as my predecessor submitted in paragraph 31 to which your Honour Justice Gageler has drawn attention, then section 11 read with section 8 would impose basically no burden because there would already be a principle that says you cannot publish the products of a trespass, whether or not private or confidential. And if that is the law then section 11 and section 8 are not really adding much.

GORDON J: Mr Solicitor, can I just deal with that question. In the sense that I was putting to you this morning, regardless of where you, in effect, determine where the current state is, that is the consequence, is it not, of your submission in relation to the application of section 11. In other words, it reflects a statutory engagement, or a statutory drafting of that which is set out in Lincoln Hunt. 

MR DONAGHUE:   Yes, it does.  But if Lincoln Hunt is already there then it does not impose an incremental burden in doing so.  If Lincoln Hunt is not already there, then that is the incremental burden that needs to be justified to the extent that Lincoln Hunt goes beyond breach of confidence.  That is really my submission.

Now, where does that take your Honours in terms of the analysis.  On this I can be very brief, I hope.  I will not take your Honours back to Banerji.  Banerji at paragraph 35 contains a majority statement of the necessity question in terms that ask whether there is:

an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom.

Now, I do not seek to add to what the learned Solicitor for New South Wales said on obvious and compelling.  We have addressed that in writing and, in our submission, where you have fundamentally different starting points, and then a public interest exception subtracting from one but not the other, there are real difficulties with obvious and compelling.  But I will rest on what we said in writing there on what Mr Sexton said. 

Our point here is about the last part of the Banerji formulation:  “a significantly lesser burden the implied freedom”, because we submit that one of the practical ways that the extent of the burden calibrates the justification enquiry is that where one has only a slight burden it is necessarily – sorry, I perhaps should not have used that word in this context – but it becomes logically difficult to show that alternative burdens will be significantly less. 

So that while it is undoubtedly the case – and we fully accept that even a slight burden must be justified ‑ a slight burden is more easily justified, or Parliament has a wider range of options in selecting amongst measures that only impose slight burdens on the freedom because amongst a range of slight burdens, even if one is slightly greater or slightly lower than the other, none will be significantly less because they are all very small. 

That, as we understand it, was accepted by your Honour the Chief Justice and Justices Bell and Keane in Clubb at paragraph 64.  I am just going to read one sentence so your Honours may not need to turn it but your Honours said:

It may be accepted that when the burden on the implied freedom is very slight it becomes difficult to say, consistently with the limitations on judicial power, that alternative measures are available that would be less burdensome while at the same time equally efficacious.  

Now, your Honours did go on to emphasise, we accept, that even a slight burden must be justified, and I am not taking issue with that.  But, in our submission, one of the ways, as LibertyWorks recognised the extent of the burden may affect calibration, is by effecting both the necessity and the adequacy in balance exercise and here, in our submission, if your Honours do find that the burden is very slight, then that can feed into the analysis by recognising not just that there is a problem of the obvious and compelling inquiry, but also that the alternative measures that the plaintiff has suggested are not significantly less burdensome.

Finally, your Honours, can I say something very brief about severance. If the Court finds that in some of their operations sections 11 and 12 infringe the implied freedom, then your Honours will reach questions 2 and 4 in the special case. Those questions are set out on page 36 of volume 1. You do not need to turn to them. But they are expressed in the language of severance. That is what your Honours are asked to address.

This is, in our respectful submission, an area that is plagued by inconsistent use of terminology in the sense that different judges and different practitioners use the same words to mean quite different things, and that has been the focus of some attention by a number of your Honours in recent cases and it may well assume quite some significance in a matter that is listed in the March hearings of the Court in the Thoms matter, so I do not seek to delve into those waters in detail here.  But whatever word one uses – and here we would submit partial disapplication, as Justice Edelman has used that phrase, or reading down, are both better than severance. 

The only operation of section 31 of the Interpretation Act, the reading‑down provision ‑ the only operation that could have is relevantly to take generally express language such as that you see in section 11, and to read it as subject to a clear constitutional limit, and the Court has accepted multiple times now that a severance clause or reading‑down clause can have that effect and that the Melbourne Corporation doctrine is a clear constitutional limit for that purpose, the Industrial Relations Act case we have cited in footnote 112 of our submissions ‑ that Chapter III is a clear constitutional limit for those purposes, including in Knight, in Graham, in Wilson ‑ in Wilson, for example, being the case where the word “person” was read as not including a Chapter III judge so as to reflect the Chapter III limit. 

But also, of course relevantly here, the implied freedom of political communication, and in Clubb, just giving your Honours the references, your Honour Justice Gageler at 148 to 149, your Honour Justice Gordon at 341 to 342 and your Honour Justice Edelman at 440, all accepted that a reading‑down clause could be used so that general language was subject to the implied freedom of communication.

But our submission is, that being clear, the clear constitutional limit to which section 11 is subject is not a limit identified, as the plaintiff would identify it, that prevents any operation of the provision on political communication because the implied freedom is not a freedom from laws that burden political communication. It is a freedom from laws that unjustifiably burden political communication.

So to exclude all political communication from the operation of the section is to do more than section 31(2) of the Interpretation Act justifies or…..it is to cut too much out of the content of the valid State law.  It would certainly excise all of the offensive material, but it would also excise valid and permissible operations of the relevant law.

To try to make that point somewhat concrete, to return to my example of the bugging of the politician in their private home speaking to their spouse, that would be political communication. But, a prohibition on bugging the politician in the privacy of their own house would be readily and obviously justified, in my submission. Our friends reading down would mean section 11 would not prohibit that and, thus, would go much further than is appropriate.

EDELMAN J:   Mr Solicitor, can I just ask whether this is a submission – and to come back to your point about terminology because I think here it makes a very big difference – about reading down or about what you call partial disapplication, or what I have called “partial disapplication”, because if ‑ ‑ ‑

MR DONAGHUE:   It is about partial disapplication.

EDELMAN J: ‑ ‑ ‑ because it is not reading down in the sense of saying, section 11 needs to be read as though there is some imposed restriction within section 11. The submission then, as I understand it, is to say, the scope of section 11 – which this Court may not even need to deal with if the factual circumstances before this Court do not fall outside any prohibition that might exist for political communication ‑ the Court could simply say, to the extent that there is some prohibition that exists for another case and it could be partially disapplied to that extent, is that the submission?

MR DONAGHUE:   That is the submission.  I probably rushed over – it is a partial disapplication submission which, in my submission, is the way that the Court has usually approached the clear constitutional standard limit.  It has not needed to read down by identifying some different words that confine the operation of the statute across the board, it has looked more specifically.  If that be right, in the effect of the reading down – and this is what we have put in our oral outline but I will qualify it in one respect – it would be closer to correct to say not what our friends for the plaintiff have said, but that the section operates, except to the extent that it imposes an unjustified burden on the freedom of political communication rather than to carve‑out all political communication.

On reflection, overnight, it did seem to us that perhaps your Honours might think that it might be more helpful once the Court has arrived at a position that says that, in this operation, the law is unjustified to identify why more precisely so that the order of the Court would reveal the unjustified operation of the law rather than to leave the matter more at large, somewhat akin to what happened in Wilson where it was not said the provision is subject to Chapter III.  It was said, the provision does not apply to federal judges, “person” does not apply to federal judges.  So, the limit is clear.

But my main conceptual point is resisting what the plaintiffs have put, that if your Honours were to conclude, for example, that the operation of this law with respect to farm trespass is invalid for some reason, the result should not be the complete exclusion of political communication from the operation of sections 11 and 12. It should be more targeted to the unjustified operation. I apologise, I have taken much longer than I intended to, your Honour.

GAGELER J:   Mr Solicitor, may I just ask a couple of questions before you conclude?  One is a follow‑up question from your last submission and the other is a question of context.  The follow‑up question from your last submission is this:  is the reading down that you propose at the end of your outline functionally different from reading in a public interest defence of the kind that we see in many of the State Acts?  The question of context is this:  does the Commonwealth still regulate slaughter for export?  And, does the Commonwealth regulate live export of animals?  And is the consequence of the second question, at least, being answered “yes”, that different State laws will permit different levels of public discourse in relation to those matters of Commonwealth concern?

MR DONAGHUE:   Your Honour, to give a confident answer to the second question, I will need to take it on notice, and if your Honour would permit us to submit a note confirming the answer to that, I would be grateful.  I think the answer is yes, but I will need to check that.  The answer is yes in the sense that the Commonwealth does regulate slaughter for export or live export, I believe.

As to the question do the State laws then impose different burdens.  The answer, I think, must be that they do, because there are significant differences between the State regimes.  But, in each case, the State regime can do that only to the extent that the burden it imposes on political communication is justified, so that, insofar as there are differences, they all

need to be justified, and I suppose one of the things this case throws up is the extent to which those differences are relevant to the answer to that justification inquiry.

As to your Honour’s first question about whether the reading down is functionally different to a public interest exception, in my submission, it is, because a public interest exception might operate much more widely than the implied freedom would.  So that if the section were to be read as if it included the words “except in the public interest”, one can imagine a whole range of answers that might be put forward as public interest justifications that have nothing to do with political communication.

So that it would embrace it – it might be case, I suppose – and here I am thinking of Hogan v Hinch – where I think the Court held that a public interest limit in a statute meant the statute was not invalid, because that language gave enough scope to ensure that the legislation did not infringe the implied freedom.  So, I accept that there is a connection between those concepts, but the public interest would again, in our submission, be wider than section 31(2) would warrant.

Your Honours, unless the Court has anything further, those are my submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  You might provide that note to the Court about the statutory provisions within five working days?

MR DONAGHUE:   Thank you, your Honour.  We will do that.

KIEFEL CJ:   Thank you.  Solicitor‑General for Western Australia.

MR THOMSON: May it please the Court. Can I commence the submissions that I would like to make by saying some things about the scope of the questions that have to be determined by the Court. The reason I do that is because I would like to draw out the implications of some of the interactions between section 8, on the one hand, and sections 11 and 12, on the other hand.

As it has now been accepted, the amended special case only provides a sufficient factual basis to support a challenge to sections 11 and 12 as engaged by section 8. The basis for the operation of section 8 is that there is a covert installation, or use, of an optical surveillance device which has been placed on land or in a vehicle, without the express or implied consent of the landowner or occupier or person who is in possession of the vehicle.

That is to say that section 8 is activated, and only activated, where an optical surveillance device is installed or used as a result of an independent trespass to the land or to the vehicle. We suggest that it should be observed that the operation of section 8, when it is activated by an act which is independently an unlawful trespass, looks at whether it is an unlawful trespass at common law, it is not an act which is made unlawful by the legislative scheme in and of itself.

Equally, as has already been observed in the Court, section 8 is not activated by the use of an optical surveillance device where there is no trespass to gain entry onto the land or to gain access to the vehicle. Some examples that have already been deployed in front of the Court are things such as the use of such a device where there is lawful entry to the land, or lawful access to the vehicle, or where there can be optical surveillance without entry onto the land, for example by standing at the boundary or by using a drone.

All of these things, in our submission, mean that the operation of section 8, if it applies, makes a trespass unlawful for a particular purpose, that is for the purpose of producing surveillance records. The terms of section 8 are that it is unlawful to:

install, use or maintain an optical surveillance device . . . to record visually or observe the carrying on of an activity ‑

Therefore, the very purpose of section 8 is to prevent the creation of unlawful surveillance records by a device which has been put into place due to an unlawful trespass and it is in that context that sections 11 and 12 operate to deal with the surveillance records which have been produced. That is to say, sections 11 and 12 concern the fruit of an unlawful trespass for a particular purpose. Therefore, the critical question is whether by making it unlawful to possess, communicate, or publish the fruit of an independently unlawful act of trespass, sections 11 and 12 impermissibly burden an implied freedom or ability to otherwise possess or communicate material unlawful, which is unlawfully obtained surveillance records.

In answering that question, for the present purposes, the Court has been asked to be proceed upon the assumption that the issue concerns a person who has some knowledge that the surveillance records have been obtained in breach of section 8, the plaintiff has put to one side…..of the relevant sections, as applied to a person who has no knowledge of the surveillance records having been obtained in breach of section 8. And so, it is only that question about the constitutional validity of section 8 in the circumstances of a person who has possession or is publishing or communicating records that have been unlawfully obtained and has some knowledge of it that is before the Court.

Can I start with something that was said in the plaintiff’s oral submissions and, in our submission, there is a live issue about whether there is any burden at all upon a freedom or ability to possess or communicate unlawfully obtained surveillance records.  The implied freedom of political communication has many times been stated to be an implied constitutional limit upon statutory power and not to create any private law right enforceable by any individual.

Now, while that point has been repeated many times, there is some importance, in our submission, for this case.  The doctrine which was stated in Lange and Levy as relating to the implied freedom of political communication – to use a shorthand which has been adopted many times in this Court – elides two issues, if you describe it as simply the implied freedom of political communication.  In truth, there are two aspects to the doctrine.  One is that there is an implied constitutional restriction upon legislative power of Parliaments, and it is an implied constitutional restriction to interfere with a freedom or ability to communicate on political matters. 

The submissions which the Commonwealth has made mainly concern the second aspect which relates to whether there is any pre‑existing freedom or ability to communicate unlawfully obtained surveillance records.  And there have been submissions made about doctrines of confidentiality and equity and human dignity and so forth.  The submissions that I propose to develop concern the first aspect about the existence and the extent of an implied constitutional restriction on legislative power which protects against interference with any ability to communicate unlawfully obtained surveillance records. 

Can I start with a passage from the judgment of Justice Edelman in Brown v Tasmania, this is in the joint book of authorities in volume 3 in tab 18, and the relevant paragraph is at paragraph 491.  His Honour says, starting in the third line of that paragraph:

The freedom of political communication which is implied into the Commonwealth Constitution does not constrain legislation which imposes a burden on unlawful activity.  Whatever it might mean to say that the Constitution is founded upon an assumption of the rule of law, that assumption does not permit the creation, by implication, of a sphere of freedom from legislative interference with illegal conduct.

His Honour made similar comments at I think paragraph 558.  There also seems to be similar comments to that in the judgment of Justice Gageler at paragraph 186 and Justice Nettle at paragraph 259.  In our submission, it is not uncontroversial that legislative interference with unlawful activity is not protected by a constitutional implication where it relates to unlawful activity.

Taking that as the starting point, we would say that just as there is no constitutional freedom from legislative interference with an unlawful activity such as trespass, no implication should be made of a constitutional freedom from legislative interference with an activity which depends upon an unlawful activity.  That is, in this case, there should be no constitutional implication of freedom from legislative interference with the ability to communicate unlawfully obtained surveillance records.

That submission depends upon a fundamental point which we would seek to express in three propositions.  The first proposition is that no constitutional implication of freedom or protection from legislative interference should be made where this would be inconsistent with the constitutional assumption of the rule of law necessary to prevent trespass occurring.

The second proposition is that if there is an implied constitutional protection for a freedom or ability to communicate unlawfully obtained surveillance records, that would be an implicit approval of the way in which the records were obtained.  In a sense, that draws upon the comments that your Honour Justice Keane made yesterday about – and analogising this with a market for stolen goods, you close down the market for the stolen goods in order to prevent people from stealing goods in the first place, so you deal with the fruits of the activity.

The third proposition is that there should be no implied constitutional protection which implicitly condones or provides an incentive for unlawful conduct which underpins it because that would be inconsistent with the constitutional assumption as the rule of law.  Now, that way of analysing the position concerns the existence or the extent of the constitutional protection of the implied freedom of political communication as it is applied to unlawfully obtained surveillance records.

EDELMAN J:   Mr Solicitor, is the effect of your second proposition that any time a court decides in its discretion to allow the use of material that has been unlawfully obtained that the court is giving implicit approval of the manner in which the material has been obtained and acting contrary to the rule of law?

MR THOMSON:   No, your Honour, because at the moment I am dealing with the proposition about legislative interference with a freedom or an ability to communicate, so it is not about a court, it is about the restriction on legislative power.  The point that I made at the outset was that this is a case which deals with legislative power to make a law relating to a person who has some knowledge of the fact that this is the fruit of unlawful activity.

KIEFEL CJ:   Mr Solicitor, approached in that way your submissions deal with a limitation which you seek to imply on the freedom in relation to lawful activity.  An alternative approach is simply to consider the matter as the extent of the burden which is here limited not just to unlawful activity but even narrower, more narrowly as you say, to where a person intends to publish with knowledge an unlawful activity.  That captures the statute more precisely, does it not, than a broader approach in relation to implied limitations on freedom?

MR THOMSON:   Yes, your Honour.  The submission here is about the extent of any implication in the Constitution to protect a pre‑existing freedom, or ability to communicate in circumstances where there is at least some suspicion that the surveillance records have been unlawfully obtained.

KIEFEL CJ:   But do you need to go any further than to say that it is not inconsistent with the constitutional freedom that a statute is based upon the requirement that activity has not been unlawful and that a person having knowledge of them is not to use the products of the unlawful activity?

MR THOMSON:   I do not think so.  I think that is just another way of expressing the constitutional implication in a more narrow sense.  If you think about the two different aspects that I mentioned to the doctrine, the second aspect of the doctrine – which goes to whether there is a pre‑existing freedom or ability to communicate – and in this case, there have been persuasive submissions made by the Commonwealth Solicitor‑General to the effect that it is largely not the case – because of doctrines of dignity and confidentiality and so forth – all of that presupposes that there might be an implied constitutional restriction upon legislative power, which means that you can communicate on those topics.

Here we say, well actually the implied constitutional restriction is narrower than that – and that there is no protection of communication of unlawfully obtained surveillance records or, alternatively, there is no restriction upon legislative power of any State or Federal Parliament to prevent communication of unlawfully obtained surveillance records to a person who has a suspicion of the fact that they were unlawfully obtained.

KIEFEL CJ:   I see the time, Mr Solicitor.  The Court will now adjourn for 15 minutes.

AT 11:17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.34 AM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR THOMSON:   Thank you, your Honour.  I have made the submission that the implied restriction on legislative ability does not apply to any freedom or ability to communicate unlawfully obtained surveillance records.  If I am wrong about that, then it is necessary to move to the McCloy questions.

Question 1 requires the identification of a burden on the implied freedom – and that is part of the…..moving to the McCloy questions. Then it becomes a matter of identifying whether the purpose of the law is legitimate and our understanding is that the balancing calculus does not happen at this stage, but it happens in the third question – so that the relevant legitimacy of interest which this law pursues to recognise the interest of privacy in lawful possession of property – and the ability of a landowner or occupier – or the vehicle occupier – to prevent wrongful surveillance and to deter contraventions of section 8 of the Surveillance Devices Act by preventing the use of unlawfully obtained surveillance records, and to limit the damage to privacy caused by publication of wrongfully obtained surveillance records.

KIEFEL CJ: Mr Solicitor, yesterday the plaintiff suggested a disconnect – lack of connection between the aim of section 2A(c), that of individual privacy, and aspects of what section 11 is pursuing. Given that the Solicitor‑General for New South Wales has said that section 11 goes beyond the protection of privacy to restrain the product of unlawful activity – the unlawful recording of activities - what do you say about the pursuit of purpose there?

MR THOMSON:   I apologise, your Honour.  I think the connection broke in the last part of your sentence.  But I think I can answer the question without you needing to repeat it.  If I do not, then perhaps let me know.  Can the Court still hear me?

KIEFEL CJ:   Yes, Mr Solicitor.

MR THOMSON: Thank you. I identified as one of the purposes – the third of the purposes – the question about limiting damage to privacy caused by the publication of wrongfully obtained surveillance records. In no way did I mean to depart from what the learned Solicitor‑General for New South Wales had to say, and in fact I think that, having identified the purpose of section 8 in the way that I did in the submissions that I made at the outset, that the purpose of section 8 as it is contained in the legislation itself – which is to prevent the unlawful use of the records – is directly picked up by sections 11 and 12 – and that is a purpose that is evident from the language of the sections.

So, our submission is that there are a number of purposes and the particular purpose that – it is to prevent the use of wrongfully obtained surveillance records is probably the dominant purpose – as demonstrated…..language.

There was another point that has been made by the plaintiffs, and that is that the purpose was simply and only to operate as what they have described as an ag‑gag law – to suppress communication about agricultural practices.  The point has been made before by those that have gone before me that the scope of the operation of the provisions is much wider than that, and clearly it is, there is no attempt to limit them to that type of context or situation. 

GAGELER J:   Mr Solicitor, the difficulty with that is that Mr Sexton sought to justify this law by reference to precisely that sort of situation.  How are we to reconcile that?

MR THOMSON:   Well, certainly it does apply in this type of situation and it may be a motivating purpose, but the section applies more widely in its terms.  It is not limited to agricultural practices.  In terms of the third McCloy question – and when I say the third McCloy question, I mean as adjusted by subsequent authority and in particular Brown – introduces the balancing calculus about whether a law is reasonably appropriate, adapted or proportionate – and I understand that there are some differences between members of the Court about precisely what those questions might be. 

But can I make these broad points – that the balancing calculus allows a range of legislative outcomes without mandating that only one statutory model can be adopted – and that is apparent from what was said in Clubb v Edwards at paragraph 69 – I do not mean to take you there – but that was a statement that – so long as the legislation does not impose measures which are:

“manifestly excessive by comparison to the demands of legitimate purpose” -

then it is not – the balancing calculus does not mean that there is only one outcome.  That is actually apparent from Clubb v Edwards itself, where there were two different statutory regimes before the Court – no doubt tailored to the particular context of each of the States which they concerned and each of those statutory regimes was held to be valid.

The second point that we would make is that the statutory primacy which is given by the New South Wales model to privacy interests over permitting publication of unlawfully obtained surveillance records is one appropriate way of carrying out the balancing calculus.  We say that because it does not create any new statutory right of privacy subject to any public interest exceptions.  What it does is it reinforces existing property rights and does not have an effect upon surveillance which does not infringe those existing rights.

So, at a broad level, what this model does is it takes what the common law has already acknowledged and confirms and protects it and makes sure that the consequences are as anticipated whereas the alternative statutory models create their own new regime really to protect privacy interests and they make a public interest exception.  But that is an entirely different type of model and the balancing calculus ought not to mandate one type of model over the other – in particular, in circumstances where the New South Wales model is based upon acknowledged common law rights and all that is happening is a confirmation of those rights.

The third point about the balancing calculus is this – that to the extent that you get to this question, the submissions of the learned Solicitor‑General for the Commonwealth are that there is only a small incremental burden which needs to be balanced or justified and if you get to that point then that, we say, is an important matter to take into account for the purposes of carrying out the balancing calculus exercise.

There seems to be an argument that the New South Wales model means that unlawful conduct, such as animal cruelty, which has been recorded could not be exposed by publication except upon the publisher being at risk of committing an offence.  There are three responses we think, at least.  The first is that the New South Wales legislative model prevents any unlawful surveillance being attempted and by doing that it prevents the risk of breaching the peace and promoting unlawful conduct by the unlawful surveillance.

The second point is that, to the extent that there is a suspicion of unlawful conduct, this may be investigated – including by way of the use of covert devices by appropriate public agencies.  In the case of Kadir, the unlawfully obtained surveillance evidence was excluded from the trial but the search warrant evidence – which was lawfully obtained by an investigating authority upon a search warrant – was admissible.  That is an illustration of the fact that there can be proper investigations carried out by

an appropriate investigative authority and the evidence obtained from the use of a covert surveillance device in those circumstances would be admissible. 

The third response is that, to the extent that unlawful surveillance has occurred and discloses a risk of imminent violence or a narcotics offence, there is a particular exception in the legislation to allow communication of that to the appropriate authorities without any penalty being risked.

So for all of those reasons the balancing exercise, if you get to that point, needs to be carried out in a way that means that this legislation is constitutionally valid in sections 11 and 12, at the least insofar as they concern only the matter that is before the court, that is, the application to a person who knows or suspects that they are in possession of or about to publish or communicate unlawfully obtained surveillance records. Those are our submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Solicitor‑General for Queensland.

MR THOMPSON:   Thank you, Chief Justice.  May it please the Court.  Our oral outline of submissions was provided to the Court yesterday morning and we do not propose to address on points that have already been covered by the Commonwealth Solicitor‑General or by exchanges with the Court with other parties.  Those points will not improve by our repetition.  So, in relation to paragraphs 1 to 3 of our oral outline, we adopt the submissions of the Commonwealth that the burden on the implied freedom which needs to be justified is the incremental burden. 

We would just like to make two short additional points in relation to that.  Firstly, in relation to or in response to the question from Justice Edelman about what principle is to be applied to draw a distinction in respect of privacy, we would add the reference to paragraph 113 in Lenah in the reasons of Justices Gummow and Hayne which appears in volume 2 of the joint book of authorities at page 360.

The other point in that context of burden we make is this. As a matter of statutory interpretation, sections 11 and 12 are not confined in their application or operation to a third party who receives the product of the unlawful conduct proscribed by sections 7 and 8. In most if not all cases, a contravention of section 7 will also be a contravention of section 12 by the person who contravened section 7. The use of the listening device to record will mean that the person recording is or becomes in possession of the record.

When that person also gives it to another party, for example, Farm Transparency, the person guilty of an offence under section 7 and consequently section 12, also thereby commits an offence under section 11. The same applies in respect of a contravention of section 8. In most if not all cases the person guilty of an offence under section 8 also will commit an offence of possession and publication under sections 12 and 11.

Now, there may be exceptions. There may be occasions when the offences under section 7 and section 8 come within the words “caused by” or “caused” in those particular provisions, but in those cases it is likely to be the position that the offender under those two sections also offends under sections 12 and 11.

So, we would submit it would be strange and further submit deeply unsatisfactory if the person who obtains information unlawfully by contravention of sections 7 or 8 is relieved of the unlawful conduct under sections 11 and 12 by our Constitution because of the implied freedom. 

That point was, with respect, made by Justice Nettle, Justice Gordon and Justice Edelman in Brown - Justice Nettle at paragraphs 259 to 262, in the joint book of authorities volume 3, pages 730 to 732; by Justice Gordon at paragraph 304 in the same case at page 750 of the joint book of authorities, and at paragraph 357 on page 765; and by Justice Edelman at paragraph 558 at page 825 of the joint book of authorities.

To take the analogy perhaps made by Justice Keane yesterday in relation to, say, drug offences, it would be like making the offence of someone setting up a methamphetamine lab an offence, but excusing that person from an offence when in possession of or by supplying the methamphetamine manufactured by the meth lab. 

Indeed, the conduct constituting an offence under section 11 would be likely to be more egregious and more destructive of privacy than the offence under section 12 and possibly also the unlawful conduct under sections 7 or 8 because it can occur multiple times by multiple means without limitation if it is protected by the implied freedom. That is, in our submission, another reason why it may be no answer to increase the penalty under section 7 or section 8 as a deterrent as we understand was submitted by the plaintiff.

From the perspective of the person who records information unlawfully under sections 7 or 8 and therefore also has unlawful possession under section 12, the incremental burden may be identified by asking, in relation to that person, but for the law, did you have a right to possess in respect of section 12 and the answer would necessarily be, in our submission, no. If that answer is no, the next question – but for the law, did you have a right to publish would also, in our submission, be no. Now, we accept that the burden question is general because the implied freedom is not a personal right. But we would submit the analysis is nonetheless useful.

The current challenge proceeds upon the basis that the information comprising a private conversation or record of carrying on an activity or the report of those matters which is published or communicated is known by the publisher or the possessor to have been unlawfully obtained.   That is because it is conceded also that sections 7 and 8 are valid and the case has been confined by the plaintiff in that respect. 

In our submission there is no legal freedom for the information to be obtained in the first place.  It could not relevantly come into the hands of a publisher without the commission of an offence under sections 7 or 8, and it falls within the principle to which we have referred in the decision of Brown in the passages from Justice Nettle, Justice Gordon and Justice Edelman to which we have referred.  The information is tainted by the illegality, and we respectfully submit that that analysis is consistent with what was very recently stated in the exchange between the Chief Justice and the Solicitor‑General for Western Australia. 

In terms of the matters contained in paragraphs 4 to 5 in respect of the legitimate aim being the protection of privacy, that has been sufficiently addressed and we will not say anything further about that save to make the observation that section 2A states a general purpose – or part of the purpose of the whole Act, because there are other provisions later in the legislation requiring consideration to the privacy of individuals in relation to authorisation of listening devices by law enforcement agencies. 

As we put in our outline and developed in our written submissions, the question is one, in our submission, to be addressed by a reference to sections 11 and 12, rather than the purpose of the Act as a whole, and we have provided references in paragraph 4(a) of our outline to the relevant passages on which we rely for that. It is not to be analysed by reference to what the law does, and again we have provided references to that and I will not take the Court to them, and it needs to be identified at an appropriate level of generality.

The final matter that we wanted to specifically refer to is in respect of matters which are identified in paragraphs 9 and 10 of our oral outline.  Can we just say this?  While the common law does not appear to presently recognise a tort of infringement of a right to privacy, invasions of privacy are becoming more common due to the technological advancements facilitating invasions and the ability to effectively disseminate the information through social media, and in response to that one sees that there has been an increasing recognition of the value of privacy.  One can see that in cases in the United Kingdom and in Australia where the obligation of confidence has been extended. 

Your Honour Justice Edelman referred to the Victorian Court of Appeal in Giller v Procopets.  The relevant passages we would ask the Court to have regard to in that case appear at paragraphs 167 and 168 of the judgment of Justice Ashley, paragraph 447 to paragraph 452 in the judgment of Justice Neave and the judgment of the President, Justice Maxwell, agreeing at paragraph 1.  Again, that was a case which progressed on the basis of a breach of confidence relating to the showing of video footage.  Justice Neave referred to passages from Lenah Game Meats and concluded that:

This approach – of strengthening the protection afforded to privacy interests by existing causes of action - supports my conclusion that damages should be available for breach of confidence occasioning distress -

There is a West Australian decision of Wilson v Ferguson [2015] WASC 15 before Justice Mitchell which is not in the bundle. Your Honour Justice Edelman referred to Campbell, the decision in relation to Naomi Campbell.  There is also the decision of the House of Lords in Attorney‑General v Guardian Newspapers and in particular the analysis of Lord Goff at pages 281 to 282 in that speech. The reference to the case is [1991] AC 109 and in New Zealand in Hosking v Runting the Court of Appeal has confirmed that there is an actionable tort for invasion of privacy.  Finally, the Australian Law Reform Commission produced a report, Serious Invasions of Privacy in the Digital Era, report number 123 in June 2014, which proposed the establishment of a tort comprising a number of elements which are set out in the report. 

The point we seek to make by that recitation of authority and the progress of the law is to emphasise that at the balance state of the proportionality analysis, the value of privacy should be given significant weight and that is reflective of the development of the law and identified in those cases, for example, in respect of confidentiality. 

KIEFEL CJ:   Mr Solicitor, in relation to section 11, the activity is not related to the purpose of privacy, is it? What is effectively an injunction in relation to the use of recordings of activities is connected to the furtherance perhaps of the purpose of section 8 or, as South Australia might say, protection of property interests in section 8?

MR THOMPSON:   I do not think we would accept confining it to property interests, your Honour, but otherwise we would accept that.

KIEFEL CJ:   Well, what is one left with in the furtherance, its purpose? The purpose of that aspect of section 11 is to further the purposes of section 8. That is it.

MR THOMPSON:   Yes, your Honour.  Your Honour, unless there are other matters that we can assist the Court with, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  Solicitor‑General for South Australia.

MR WAIT:   Thank you, your Honour.  South Australia has filed written submissions addressing four topics and I intend this morning to rely on those written submissions in relation to the first topic, on incremental burden, but to address your Honours very briefly on the remaining topics of purpose, necessity and adequacy in the balance.

The importance of appropriately identifying purpose is borne out by the present matter.  South Australia submits that the impugned provisions can be seen to be directed towards a composite purpose comprising both protection against intrusions into privacy but also intrusions upon property rights.

The additional purpose of protecting against intrusions into property rights is most apparent from the operation of section 8. Section 8 prohibits the use of an optical surveillance device to record or observe activity if that use involves trespass. In doing so, section 8 protects against uses of surveillance devices that involve an interference with property rights. They also protect against the use of surveillance devices that may record activity that is private.

Section 8 then engages the impugned provisions which can be seen to pursue the composite purpose of protecting against intrusions into privacy and intrusions into property rights in the following two ways. First, to the extent to which a breach of section 8 occasions an intrusion of privacy, the prohibitions contained in the impugned provisions prevent the further undermining of that privacy interest by means of publication of records of private activity.

Second, because the ability to publish material obtained through the unlawful use of surveillance devices may reward and therefore incentivise an initial intrusion upon property rights brought about by a trespass, the impugned provisions are directed towards deterring the publication of material so obtained, so it is…..private contravener of the fruits of their unlawful conduct. 

For these reasons, South Australia submits that the impugned provisions can be seen to protect against intrusions into privacy but that they go further, and they also protect intrusions into proprietary interests.  Although we acknowledge that the purpose of protecting against intrusions into property rights is not expressly identified in the objects clause, this does not preclude it from forming part of the legitimate purpose of the impugned provisions.  As Justice Edelman recently observed in LibertyWorks at paragraph [204], which I do not need to take the Court to:

the purposes of the whole legislation can often be cast at a higher level of generality than the particular purposes of its disparate parts.

Further, the protection against intrusions into property ‑ ‑ ‑

KIEFEL CJ:   Mr Solicitor, so understood, the purpose here is not at a higher level of generality.  It is different, is it not, from the general purpose stated in the objects clause?

MR WAIT:   Your Honour, it is an extension of it.  It is an addition to it, but it is by no means inconsistent with it and, in fact, we would say that there is a significant overlap between the explicit privacy purpose found in section 2A(c) and with the property interest purpose in that the purposes of protecting property interests is - one of the planks of that interest is to protect privacy interests.

KIEFEL CJ:   It may.  The protection of property interests may protect privacy, but it may go further.

MR WAIT: Yes, your Honour. I do not intend to cavil with your Honour on that point in that it is our submission that the legitimate purpose, when understood by reference to the text and the operation of section 8 – taken together with sections 11 and 12 – does actually extend beyond the express purpose. So, in our submission, it does go beyond that – that found in section 2A.

With that proposed composite purpose in mind, we turn then to necessity.  The plaintiff’s point, principally – the two features in the legislation regulating the use of surveillance devices in other jurisdictions – those are the focus of those other regimes on private activities, on the one hand, and the second feature being the presence of a public interest exception. 

As to the first feature, the plaintiffs have submitted that the alternative schemes were enacted so as to the meet the “same societal issue” – was the language used yesterday by Mr Dunning.  South Australia accepts that, at one level, it might be accepted that surveillance device legislation across the country is responding to a societal issue at a broad level.  But we say that language is too loose to describe the purpose of the different regimes that are under consideration. 

The particular feature of the proffered alternatives – coupled with the fact that they are not tied to notions of trespass – strongly suggest that, in fact, they are pursuing different purposes – or, at least, that there are different purposes at play, whereas here the impugned provisions pursue a composite purpose.  It would not be sufficient to point to an alternative that pursues only one of the identified purposes that makes up that composition.  Even if it could be shown that the proffered alternatives impose a lesser burden, they cannot be obvious and compelling alternatives if they are pursuing different purposes.

Turning to consider the plaintiff’s submission focused on the absence of public interest exception, while the inclusion of a public interest exception would necessarily lessen the extent of the burden on the implied freedom, it would lead to a corresponding reduction in the achievement of the legislation’s purpose.  So, by excluding a public interest exception, the Parliament of New South Wales can be seen to have prosecuted its purposes to a fuller extent. 

If, in the absence of a public interest exception, the SD Act was considered to fail the necessity test, it might be asked, rhetorically, whether a public interest exception should be a necessary feature of any law that burdens the implied freedom.

All manner of laws including, for example, the laws considered in Comcare v Banerji, might be said to require such an exception.  If that was so, the implied freedom would become, we say, a trump over other values.  Of course, that is not to say that where there is a greater burden that is imposed – where a greater burden is imposed by a law that contains no public interest exception – that burden need not be justified.  It does.  But, consistent with your Honour the Chief Justice’s observations yesterday, South Australia submits that that justification be undertaken at the adequacy and the balance stage.

Turning then, finally, to the balancing stage, as the plaintiff suggests, the inclusion of a public interest exception could promote the free flow of political information in circumstances where that would be in the public interest.  But, the Parliament of New South Wales made a policy choice that pursuing its legislative purpose outweighs the resulting burden on the implied freedom.  The Court’s task is not to determine whether the Parliament of New South Wales has struck an ideal balance in making that choice, rather it is to supervise the Parliament’s choice by asking whether that choice was a rational one.

When the purpose of the impugned provision is properly understood to include not only interest in privacy, but to extend further to the protection of property rights, a broader range of legitimate interests come to bear upon the adequacy of balance.  Protecting property interests through disincentivising trespass promotes privacy as well as other important societal virtues, such as security, quiet enjoyment and autonomy.  Unless the Court has any questions those are the parting submissions from South Australia. 

KIEFEL CJ:   Thank you, Mr Solicitor.  Mr Dunning.

MR DUNNING:   Thank you, your Honours.  Your Honours, when I opened the plaintiff’s case yesterday I made clear as, I think has been respectfully borne out, that really the two issues that fell to be determined were the incremental extent of the burden, and then whether the onus for justification had been met, the latter plainly informed by the former and that which the parties divide on is the extent of that burden. 

My learned friend, the Solicitor for New South Wales, supported by all of the other interveners but particularly the Commonwealth, has placed their case very firmly on the fact that the incremental burden is small.  We put our case on the basis that the incremental burden is large and our learned friend, the Solicitor for the Commonwealth, kindly posited a test orally – posited a description of the burden here – and I will come to deal with that in a moment. 

We accept that if the incremental burden is slight, then this is a very difficult case for us.  It follows if the submissions I make about incremental burden are correct – and I will not rehearse these, but it was previously submitted – there is really nothing to discharge that considerably elevated burden of justification. 

That really then turns to what is the question of the incremental burden.  Both sides agree that one looks to Lenah as the statement of the law there and there are good reasons for that.  The near precise if not in fact precise parallel on the facts is reason enough alone.  The fact though that it has the majority…..commanded, in effect, unquestioned respect in the two decades since it was determined also suggests that looking to it for guidance is correct. 

So, can I then deal with how this is dealt with, particularly by our friend for the Commonwealth because they were the people who most developed this orally.  This deals with the paragraph numbers 8 and 9 – the oral summary of the Commonwealth.  If I can ask your Honours please to take up Lenah, the joint book of authorities tab 2 – volume 2, tab 15. 

Your Honours will recollect that effectively Lenah was put against us for three reasons.  The first was to show that the general law…..those matters…..covered.  That was effectively that the law of breach of confidence would cover this, the law of copyright would cover it, and an extension, as has been identified – or perhaps more accurately articulated in Meagher, Gummow and Lehane in relation to trespass – the law of trespass would cover the situation of the innocent of trespass but knowing recipient of the product of a trespass. 

The copyright point does not seem to be pressed but Lenah does deal with that, and I will deal with that as I take your Honours to the passage.  So, I am going to start with the breach of confidence argument that is put against us.  Our friends took you to paragraphs 42 and 43.  I will not take your Honours back to those paragraphs of Chief Justice Gleeson’s reasons, but his Honour there drew the distinction between what was private on the one hand and what was not private.  His Honour also drew the distinction as to what was confidential and what was not confidential, and your Honours will recollect in some exchanges yesterday that issue arose. 

Chief Justice Gleeson deals with that in paragraphs 25, 26 and 28.  Can I just ask your Honours please – and his Honour comes to the view that in this case the operation of the possum abattoir was not confidential in the relevant sense.  Can I ask your Honours please to notice about the first half of paragraph 25, the last two sentences of paragraph 26 and the last sentence at paragraph 28?

In our respectful submission, that serves to illuminate the important distinction that his Honour reasoned against, that is, in relation to breach of confidence there is in effect a special place made for the intrusion into matters that are truly private in the proper sense of that expression – but otherwise, in respect of a stranger, such as Farm Transparency, or the ABC, breach of confidence will not obtain.  That is how his Honour then proceeds to reason.

Can I give your Honours these references in the Chief Justice’s judgment, starting at paragraph 30.  In part his Honour deals with the question of unconscionability – because your Honours will no doubt recollect that, by the time the case got to this Court, there had been an argument about whether effectively an interlocutory injunction might grant just against this conception of unconscionability – but that is not pressed here, and it was rejected in Lenah.  But his Honour starts at paragraph 30 in the fourth line:

An alternative submission was made -

Then his Honour at paragraph 31 – and I will not take your Honours directly to it, but Justice Gageler drew our attention to that – refers to how that position had been framed by the then Solicitor‑General for the Commonwealth.  Then, if I can ask your Honours please to notice the last sentence of paragraph 32 – which shows precisely the issue that we are concerned with here.  Then in paragraph 34, his Honour exposes the rationale for the critical distinction – and that is why in circumstances effectively where it is not private, there will be no relationship of trust and confidence of the kind that the law of breach of confidence responds to.  That led his Honour to conclude in the last three sentences of paragraph 35, in the fourth‑last line starting “The activities filmed”, which is why his Honour at paragraph 39 – and I will not take your Honours back to 39, you have been taken it – it starts with:

If the activities filmed were private -

and his Honour ultimately to conclude at paragraph 55 why a breach of confidence action was not maintainable.  I will come to deal with this when I come to deal with the Solicitor for the Commonwealth’s test but, in our submission, breach of confidence, we accept, would obtain in relation to purely private matters in the received understanding of that expression, but purely ‑ ‑ ‑

KEANE J:   Sorry, Mr Dunning, can I interrupt to ask – looking at paragraph 55 in the Chief Justice’s reasons and, having regard to what the other judges said – it is not suggested that the inquiry and the reasoning which leads to the conclusion against the plaintiff in that case, could have been reached much more readily by simply saying that the various forms of causes of action, which Lenah Game Meats raised, would have failed because of the implied restriction on legislative power from the Constitution.  Is it fair to say that only Justice Kirby suggested that possibility? 

MR DUNNING:   Justice Keane, I am not sure I would use the word “unfair”.  Justice Gageler has given us one reference to Chief Justice Gleeson and I would give another – and, perhaps, I might deal with that issue now.  I was going to deal with it a little later.  So, the passages, Justice Keane, I take it you are referring to are at paragraphs 220 to 221 of Justice Kirby’s reasons.

KEANE J:   Yes, that is right.

MR DUNNING:   Where, as your Honours will appreciate, Justice Kirby took a different attitude – a different approach, my apologies – to the disposition of the case.  Justice Kirby would have granted the injunctions but, for the reasons identified in 220 and 221, was of the view that the implied freedom was a good discretionary reason to refuse and whilst, obviously, his Honour’s approach to the substantive issues did not command the support of a majority of the Court that part of his Honour’s reasoning does not seem to be a tension with any other part of the reasoning in the case.  Justice Gageler gave us a reference to paragraph ‑ ‑ ‑

KEANE J:   It does seem to be rather pointedly different to what the Chief Justice said at page 220, in paragraph 20 of his reasons, where his Honour concluded: 

But it is not a mere balancing factor in a discretionary judgment as to the preferred outcome in a particular case –

The Chief Justice was obviously mindful of the argument.  He disagreed with Justice Kirby in treating it is as a discretionary – the implied restriction on legislative power as a discretionary consideration.  But he distinctly did not conclude that the various arguments that were put would have failed in any event because of the implied restriction on power or that they were immaterial because of the implied restriction on power.  Rather, his Honour’s reasoning – and certainly the reasoning of the other members of the Court – proceeds upon the assumption, it would seem, that if the relevant causes of action had been available – by common law or statute – they would have been effective.  

MR DUNNING:   Justice Keane, respectfully, I would agree with the first part of that proposition your Honour put to me but not the second.  As to the first, your Honour is, of course, right, that the Chief Justice did not consider whether any of these provisions would have been affected by the implied freedom but, in our respectful submission – given the views…..that was the orthodox position to take because if there were non‑constitutional reasons to have disposed of the case, one would not have resorted to that.  But his Honour does seem to have considered the matter of some significance. 

Justice Gageler gave us the reference this morning to paragraph 21 in that regard.  But can I also give your Honours, please, the reference to his Honour’s reasons at paragraph 35, in the first sentence in that paragraph.  I should also direct your Honour’s attention to what follows in the following sentence, that these considerations would, in an appropriate case, be untouched by the implied freedom – my language, not your Honour’s, Justice Keane.  I would respectfully disagree with.  Thank you, your Honour.  Your Honours, may I ‑ ‑ ‑

GORDON J:   Mr Dunning, while you are interrupted may I just ask one question?  You opened the submissions in reply by – as I understood the submissions – seeking to put Farm Transparency in the same category as the ABC.  Do you accept that by reference to the facts stated in the special case that is not open in this sense, but as I understand the special case the second plaintiff is a director of the first plaintiff?

MR DUNNING:   Yes.

GORDON J:   Thank you.

MR DUNNING:   Sorry, Justice Gordon, I should say a director.  I would need to double check the special case but I do not believe that it says, for example, that he is the guiding mind of the company, but I accept he has a significant involvement in its operations, yes.  But it is not his company…..if I can put it that way.

So that deals with how the Chief Justice dealt with breach of confidence.  Then there is this extended conception of relief that might be granted in respect of trespass, and this is picked up at paragraph 9 of the Commonwealth’s oral summary and is seated in reference to what we accept as that seminal work on the law of equity in Australia. 

Can I come to deal with how this Court dealt with those arguments here?  Your Honours have already been taken to paragraphs 50 to…..of how Chief Justice Gleeson dealt with Lincoln Hunt.  Plainly, his Honour did not consider that that was a basis which might have supported the injunction here.  His Honour considered ultimately that there was either a breach of confidence case or there was effectively nothing.

So, in our submission, his Honour cannot be taken to have embraced the notion that Lincoln Hunt would give rise to an extended operation of this issue, and no doubt in part because, as his Honour records about halfway through paragraph 51, in Lincoln Hunt which even though the report does not detail in great detail what happened, plainly there must have been high‑handed behaviour just from the language, the way the judge described it and the way Chief Justice Gleeson describes it.

Yet a case like that as a matter of discretion one would not grant an injunction for but, rather, damages would have been an adequate remedy.  There is an important distinction there.  That is against the trespasser.  So the damage was an adequate remedy as against the trespasser.  We are not concerned with someone who is one step removed from the trespasser, as we are here.

Can I take you please to how in the joint judgment of Justices Gummow and Hayne their Honours dealt with this argument, and as the Solicitor‑General for the Commonwealth pointed out, Justice Gaudron agrees - paragraph 58 is where her Honour agrees with that.  Your Honours, the analysis starts at 100 to 101, and I appreciate that I took your Honours to that passage in my primary submissions so I will move through it very briefly.

If I can ask your Honours to go to paragraph 100, you will see that in the joint judgment their Honours set out the passage of Justice Young that is relied upon but then they come to explain why trespass would not be the basis for a grant of an injunction and their Honours deal with that in 100.

Then at 101 their Honours go on to offer a principal basis upon which an order of the kind that was under consideration might have been made and that was the law in relation to copyright.  So in paragraph 101 their Honours step through the stages by which the trespasser would own the copyright.

Then if we go to paragraph 102, what their Honours there essay is the manner in which the trespasser who has made the film and therefore is the repository of the copyright might nonetheless end up the constructive trustee of that copyright for the occupier whose premises had been the subject of the trespass.  So, your Honours, about four lines from the foot of the page at which 102 starts, their Honours say:

In such circumstances, the plaintiff may obtain a declaration as to the subsistence of the trust and a mandatory order requiring an assignment -

Their Honours were there referring to the fact that under the Copyright Act it would need that to assign the copyright.  Then, your Honours, at 103 their Honours contemplate the circumstances in which interlocutory relief might issue.  At the beginning where they say:

In the meantime, the making of any broadcast would be subject to interlocutory restraint, as an invasion of the equitable interest in the copyright of the plaintiff.

But there their Honours are speaking of Willesee, who was the trespasser, or whose agents had conducted the trespass, so in practical terms was the trespasser.  So that in those circumstances you could get an interlocutory injunction in aid of the time it would take to become the true owner of the copyright.  The position of somebody like LibertyWorks was dealt - after the reference to authority at the middle of the paragraph:

This remedy extends to disclosure to the plaintiff of the identity of a wrongdoer in whose tortious acts the defendant has, even innocently, become involved -

So, in our submission, on a fair reading of paragraph 103, their Honours are reflecting the fact that, to the extent interlocutory relief might be available, it would be available against the trespasser but not as against somebody who was, say, the recipient of the material, which is presumably part of the reason it is not pressed.  Perhaps just to close that out, paragraph 104 in the last five lines on that page where their Honours say:

In the present case, as has been noted earlier in these reasons, it is not alleged that the ABC was implicated in or privy to the trespasses upon the premises and there is no allegation of the tort of conspiracy.  

But there are other references.  I gave your Honours one yesterday at paragraph 24…..the ABC was a party that knew that the material had been obtained that way.  Then, your Honours, having identified the basis upon which what had been said in Lincoln might be supported by a substantive cause of action, their Honours go to deal with the conception of trespass, in effect having rejected how it had been put. 

Can I ask your Honours please to go to paragraphs 136 and 137 of their Honours’ reasons, and again this gets back to the proposition that had been put by the then Solicitor for the Commonwealth that was the subject of exchange between Justice Gageler, and the current Solicitor for the Commonwealth a little earlier.  Their Honours record the submission that was put them and then in paragraph 137 make clear the obstacles they saw in the way of such an approach. 

So, your Honours, in our submission, once one carefully analyses the holdings of the several judgments that made the majority in Lenah, it is clear beyond doubt that breach of confidence was not a response to a situation of a person in the position of Farm Transparency, copyright was not a response and some extended conception of trespass had been rejected as incorrect, which left this to be recorded by a number of the judges.

At paragraph 21 of the Chief Justice’s reasons, in the first sentence, his Honour records that no statute had been breached.  In the joint judgments of Justices Gummow and Hayne, at paragraphs 105 to a like effect, about halfway through the paragraph, about there being no statute.  The matter is most, if we might respectfully submit, pithily yet comprehensively summarised by Justice Gaudron at paragraph 61.  We invite your Honours to read, please, paragraph 61. 

In our submission her Honour neatly captures the state of the law – general law – sorry, equitable, common law, statutory law, as it stood in 2021 and that in respect of a party in the position of Farm Transparency, there was not a legal inhibition to do so.  If the submissions we make in that regard are right, then, in our submission, they should be accepted because the case itself is not questioned and their Honours’ reasoning is clear.  The incremental burden is large because it legislates in respect of an area that is otherwise stood as having no restrictions under the general law. 

So, if we go back to  – and I will not ask your Honours to pick up Brown, but the Solicitor‑General for the Commonwealth effectively said that the essence of this question of incremental burden is, as your Honours Chief Justice Kiefel and Justices Bell and Keane put it, “what protesters could do were it not for the statute”, in paragraph 109 of Brown, or, as Justice Gageler had put it, the “practical ability” of Farm Transparency.

So, adopting what Justice Gageler said, the practical ability of Farm Transparency to engage in political communication with the law compared to without - so, with section 11 for Farm Transparency today, without section 11 for the ABC in 2021 – that is paragraph 181, or “real‑world ability” as Justice Gageler also described it, or as your Honour Justice Gordon put it at paragraph 357, an examination under the “wider legal framework” would reveal that it was substantially unlawful. For the reasons we hope we have demonstrated, that is not the case here.

Justice Gordon, at that point can I just pick up an answer to a question that was posed I think to the Solicitor for the Commonwealth, and that was is section 11 effectively a statutory embodiment of Lincoln.  Our respectful submission is the answer to that question is no because Lincoln was concerned with a trespasser. It was not concerned with somebody who had merely received the product of the trespass but was not implicated in the trespass. So, to that extent section 11 casts a distinctly wider net because the trespasser was always violating the general law.

Can I also deal with, Justice Gageler, the three questions that you posed to the Commonwealth Solicitor in relation to, first of all, what Chief Justice Gleeson said about the implied freedom.  I have already dealt with that.  As to the inequity exception, we agree with the approach our learned friend, the Solicitor for the Commonwealth puts us to – how one would see that framed.

In relation to the discretionary character of the equitable remedies, we not only respectfully submit that the answer the Solicitor for the Commonwealth gave was right, but there is more to it than that.  There is not just the discretionary reason, there is the threshold discretionary consideration which would always loom large here on whether damages would be an adequate remedy. 

If one looks at the high‑handed conduct being referred to in Lincoln – and even in that case the damages were considered to be an adequate remedy – when we go back to your Honour’s formulation in Brown of how we assess incremental burden, and look at it in a practical real‑world way, in a practical real‑world way, even if you could find causes of action – for the reasons I have given you cannot – to the extent they are discretionary, the hurdle of the general adequacy of damages as a start would be insurmountable for many of these cases.

EDELMAN J:   Mr Dunning, can I just ask about the effect of that submission?  Is that a submission that even if conduct is unlawful the existence of a discretion as to the response to the unlawfulness means that that unlawful conduct has to be included in the burden for taking into account the implied freedom?

MR DUNNING:   No, Justice Edelman.  If I expressed it that way, I do not mean to because the distinction, relevantly, is between the trespasser and someone who merely has the product of a trespass but is not complicit in it.  That sufficiently answers the question but, were it to matter, obviously the discretionary consideration, as I explained it, would be very different as against the person who is merely a recipient but not complicit and a person who was a trespasser.  But one cannot ignore the fact that Justice Hunt was dealing with a trespasser and so, on a practical level, damages were still an adequate remedy. 

Your Honours, may I then please move to the formulation of the burden that the Solicitor for the Commonwealth helpfully gave us?  If my note is accurate, there were three critical things that you had – you had something that was the product of trespass in relation to a political or governmental matter and that was not private.  Can I deal with the first of those?  I am not critical of the formulation of it but I just would wish to make it clear. 

When we talk of the product of the trespass, that is understood to mean we are talking of the burden on an individual – or a burden on an individual who has the material but was not complicit in the trespass.  So, if that is what we mean by the product of the trespass, I have no problem with that formulation but we need to make it clear that it is not wider than that to pick up the trespass.

Obviously, in relation to a political matter, yes, but as to the third of those components, in our submission, respectfully, that does not go to the incremental burden because whilst we readily accept that the general law does cover the truly private material, it would not be a political or governmental matter in the first place. 

So, if I can pick the example that was used a couple of times – and that is, the Member of Parliament, in his underwear, speaking to his spouse in his bedroom.  In our respectful submission, no view of it is that going to be political speak – if I can use that shorthand expression.  So, there will never be ‑ ‑ ‑

GAGELER J:   Mr Dunning, what if he expresses a view about the character of one of his ministerial colleagues?

MR DUNNING:   Then that is still not political speak any more than – to give the example, Justice Gageler, you have given in the past, of the people playing cards and there is some adventitious discussion about politics – because if we might respectfully reflect it this way.  The marketplace of ideas say that there is a free flow of information about important matters to political or governmental matters – is not aided by a scantily‑clad politician speaking to his wife and giving – as I think it might have been described in recent times - a 360‑degree character assessment of one of his colleagues.

The freedom does not exist to protect that and it would be a bad thing, if we might respectfully submit, if it did, because it would be to dilute in a really serious way the value – sorry, I did not mean to express that quite so forcefully – that is why in our submission the mere fact that the politician is expressing negative views about some of his colleagues is not political speech because it ‑ ‑ ‑

GLEESON J:   Mr Dunning, I do question that because anyone who has driven a car to or from work in the last week has heard endless discussion about the implications of an insult of the Prime Minister for the security of his position as Prime Minister.

MR DUNNING:   Justice Gleeson, I accept that, but the mere fact that it might be spoken of frequently at a moment in time does not, in our submission, give it the character of discussion on a political or governmental matter – sorry, give every discussion about that character – so I accept in the illustration, Justice Gleeson, you have given me, that that discussion on the radio – yes, it is – because notwithstanding it might appear immediately after the Cash Cow draw and immediately before something else that is not particularly erudite, it is nonetheless a discussion about a matter that it bears upon people’s electoral choices. 

But, in the privacy of somebody’s own bedroom, to their life partner, explaining why they do not like somebody who happens to be a work colleague, in our submission, will not add to the political discourse, notwithstanding that that same discussion, in different circumstances – sorry, those same sentiments expressed in a different place might.

KEANE J:   Mr Dunning, is not the effect of your answer just that freedom of political communication can come at too high a price?

MR DUNNING:   Justice Keane, I think, respectfully no, but where I think your Honour and I differ – sorry, your Honour’s proposition – is one characterisation is to talk about it coming at too high a price.  Anterior to that, in my submission, one is truly a discussion about a genuine matter of political importance and the other is not – notwithstanding they may cover the same subject matter and that there is inevitably a judgment to be made as to whether something is a discussion of a matter of political content.

Clubb v Edwards is a paradigm of the fact that you can have both concurrently on the same general subject matter, yet one will be and one will not be – which is why, in my submission, it is not right to group every time the same set of words – or the same couple of words appear in a sentence as always being of a political character, but rather it requires that assessment of whether in truth they are.  That is a critical part of what the implied freedom requires, otherwise it would have the impact your Honour says.

KIEFEL CJ:   I see the time, Mr Dunning.  The Court will adjourn until 2.15.

MR DUNNING:   Excuse me, Chief Justice?  I probably only have, subject obviously to questions your Honours had, five to 10 minutes to go - obviously coming back after lunch is fine, but I thought I should at least alert your Honours to it in case that mattered to you.

KIEFEL CJ:   Well, on the basis it is no more than that, Mr Dunning, we will continue to sit.

MR DUNNING:   Thank you.  Your Honours, for that reason and taking the full force of those matters that Justices Gleeson and Keane have put to me, nonetheless, in our submission, the sorts of matters that were pressed on your Honour as private are not going to be, at least overwhelmingly if perhaps not entirely, not matters of political discourse. 

Now, once you take that out of our learned friend’s formulation, what you end up with is the burden here is the product of a trespass in the hands of somebody who was not complicit in the trespass…..about a political or governmental matter.  Now, that is in terms so decoupled from the purposes of 2A(c) that it does not have a rightful operation in that statute when measured against the implied freedom.

What it also brings, in our respectful submission, starkly into contrast is that in respect of the operation of this Act on political speech, it legislates in a way where there is no other general law prohibition on it, and only on that.  The general law did deal with privacy, but this Act goes so much further and in a way that is not informed by the purposes. 

Can I just very briefly deal with some submissions of – I am sorry, perhaps before I leave that, it follows that - Justice Gageler asked a question of our learned friend the Solicitor of the Commonwealth about the functional difference with a public interest…..and, in our submission, the functional difference would become nil because if our submission in relation to the fact that private matters, and the properly received understanding of that expression are not generally going to be governmental or political matters, then there is in effect no functional difference if you were imposing a public interest criterion.  What you will end up is with the harmonious arrangement that truly private matters would fail at the general law and fail under this law and matters in relation to political or governmental matters will fail under this law which, in our submission, they should.

Finally, your Honours, can we deal with the submissions of Western Australia and South Australia and say much as they call in aid section 11 of the Act to buttress in so significant a way property interests that are regulated under section 7, at some point that will effectively become some species of collective punishment.

If I really want to stop somebody trespassing, I criminalise the conduct of somebody who had nothing to do with the trespass but does receive information that the public would have an interest in.  Finally in relation to the submission of our learned friend, the Solicitor for South Australia, in relation to the question of purposes and the suggestion that the way we would characterise it is all too loose, if we could give – and we accept, an analogy only – a reference to Lange. 

When Lange was decided, defamation was codified in Queensland.  There was a statutory defence of qualified privilege in some of the Australian States, and others relied wholly upon the common law, yet there was seen to be no difficulty, notwithstanding the different legal arrangements in each of those jurisdictions, and certainly no frontal attack on Federation, to say that each of them ultimately would need to be seen to co‑exist with the implied freedom.

Your Honour the Chief Justice, unless I can assist any further, they were our submissions in reply.

KIEFEL CJ:   Yes, thank you, Mr Dunning.  The Court reserves its decision in this matter and adjourns to 10.00 am on Tuesday, 15 February.

AT 12.55 AM THE MATTER WAS ADJOURNED