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

[2022] HCATrans 5

[2022] HCATrans 005

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 THURSDAY, 10 FEBRUARY 2022, AT 10.01 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   I will announce the appearances for the parties and interveners.

MR P.J. DUNNING, QC appears with MR A. ALEKSOV for the plaintiffs.  (instructed by Bleyer Lawyers Pty Ltd)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales, appears with MR M.W.R. ADAMS for the State of New South Wales.  (instructed by Crown Solicitor’s Office (NSW))

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MR T.M. WOOD and MS J.R. WANG for the Attorney‑General of the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia, appears with MS G.M. MULLINS for the Attorney‑General for the State of Western Australia intervening.  (instructed by State Solicitor’s Office (WA))

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland, appears with MS F.J. NAGORCKA and MR K.J.E. BLORE for the Attorney‑General of the State of Queensland intervening.  (instructed by Crown Law (Qld))

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia, appears with MS K.M. SCOTT for the Attorney‑General for the State of South Australia intervening.  (instructed by Crown Solicitor’s Office (SA))

KIEFEL CJ:   Yes, Mr Dunning.

MR DUNNING:   Thank you, your Honours.  Your Honours, for reasons we will come to develop in more detail, in our respectful submission, the present proceedings will ultimately distil to two matters in controversy between the parties, and critically they are these.  The first is the extent of the burden upon which the parties divide.  There is no doubt – there is no controversy that there is a burden to serve it against us.  The burden is light.  We respectfully disagree and we will come to develop why that is.  As we all know, the extent of the burden is relevant to later stages in the testing of the legislation to see if it is within power.

The second substantive matter that the parties join on is the utility, as we would submit, or otherwise as the defendants and the interveners would submit, of the alternative legislative schema in certain of the other States.  Effectively, it is said against us that that is just effectively the unhelpful picking over of alternative statutes.  In our submission, it is a useful manner of measuring the necessity of this law, even if it was found to be necessary in the relevant sense to the question of adequacy in the balance, and ultimately whether it is reasonably appropriate and adapted ultimately for its purpose. 

As your Honours will have seen from not only the written submissions, but particularly our reply and exchange between ourselves and New South Wales in our outline of oral argument, a number of other arguments are at least reduced in scope. 

That brings me then to alert your Honours to the fact that we had nominated three hours for our address.  Now, when we did that last year we were not sure what the world would hold and we thought we should allow for the vicissitudes of having to operate remotely.  Regrettably, we were right about that.  But all that being said, we are not actually expecting we will take as long and I thought I should just let your Honours know at the outset that at this stage we would hope we would be shorter than the three hours, really because the issues are distilled in the way I have just described.

Your Honours, can I then briefly introduce your Honours to the material.  Your Honours will find the special case agreed between the parties under tab 7 of the court book, starting at page 27, and the relevant New South Wales legislative provisions starting under tab 7, point 1 on page 41 of the book.  Your Honours, I will also give you reference to the Victorian equivalent because it is the one that we most heavily refer to, and your Honours will find the Listening Devices Act for Victoria under tab 7, point 27, starting at page 1030 of the appeal book.

Your Honours, can I move please to the New South Wales legislation, and given the manner in which this is developed between particularly the plaintiffs and the defendant in the outlines, I was not going to spend a great deal of time on the legislative provisions and, ultimately, it is only a handful of them that matter.  But can I ask your Honours please to go to section 2A on page 46 of the book?  Your Honours, for present purposes, we are not concerned with objects (a) and (b) but we are concerned with the purpose in (c):

to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices.

We would particularly emphasise to your Honours the fact that the stated purpose for this legislation is privacy and privacy of an individual.  Now, Lenah tells us there are issues obviously around privacy of a corporation but it has been made clear by the legislature that the purpose of this Act is privacy of the individual, not the “unnecessarily impinged”, and that word “unnecessarily”, in our submission, may, probably does, in fact, take on an importance when we come to the issue of severance which, in our submission, the provisions are capable of.  The Commonwealth seem to share that view but our friends for the defendant submit otherwise.

Those purposes are directed to the “requirements around the installation, use and maintenance of surveillance devices”.  It is not a stated purpose of the Act to regulate the product of any such surveillance device and, no doubt, that is in part why New South Wales developed their argument, at least by reference to sections 11 and 12, better securing compliance with sections 7 and 8, relevantly for our purposes.

EDELMAN J:   Mr Dunning, you do not need to address this now, but at some point, particularly in light of the object in subparagraph (c), it may be useful to address the issue which seems to be lurking beneath a number of the submissions but not really brought out into the fore, which is the extent to which the common law recognises a right of privacy because, to the extent to which that right is recognised, it may be that there is no burden by legislation prohibiting the doing of that which the common law would never have permitted in any event. 

MR DUNNING:   Certainly, Justice Edelman.  I was proposing to deal with that.  I accept that.  One of the things that I will need to do if the plaintiffs are to be successful here is to demonstrate to your Honours that there is an incremental burden.  Put another way, if ultimately all 11 and 12 did was embody in statute that which the general law was providing for, then, according to the orthodox approach to these matters, the burden would only be a slight one.  It is not controversially there is some burden, but it would only be a slight one and concomitantly justification would be light. 

I am going to come to deal with that in a little more detail, but ultimately, your Honour, the answer is going to be to say that when one looks at those remedies, whether it be will the law in Australia one day develop to recognise a tort of privacy, and would an injunction issue in favour of it, at least routinely, breach of confidence actions, and, again, would they be secured by interlocutory injunctions and copyright claims to ultimately demonstrate that this law in its practical operation will prevent conduct that would otherwise would go uninhibited by the general law, both because it simply would not be picked up – you would not make out a claim in breach of confidence, let us say, or, it is not the sort of behaviour that the law would enjoin by interlocutory injunction.

GORDON J:   Mr Dunning, I understand you are going to pick this up later, but I must say for my part I do not quite understand that because you do not challenge the underlying provisions here which prohibit the conduct at the start, namely 7 to 9. 

MR DUNNING:   No, that is correct ‑ ‑ ‑ 

GORDON J:   So, absent – in a sense I had always understood the position that you need to take them as though they are valid and able to be imposed here and the incremental burden is only the effect of 11 and 12 which seems to be directed at the consequences of otherwise unlawfully obtained information.  Do I have that wrong?

MR DUNNING:   No, Justice Gordon.  No, our position is that we do not challenge 7 to 9.  We accept that the Parliament could pass such law.  We challenge 11and 12 at least in their application to the implied freedom, because they are directed at a different matter, in our submission.  They are directed not at prohibiting the installation of these devices or the making of the recording.  That is a matter that is regulated under 7to 9.  What they prohibit is somebody other than the person who was responsible for that using information that comes into their possession. 

EDELMAN J:   Mr Dunning, the point then that you will be coming to is, to the extent to which the law does or might develop to recognise a right in relation to private information such that a third party who knowingly receives private information cannot publish that information there remains an incremental burden by sections 11 and 12 upon that right to private or confidential information as perhaps accommodating, as that right must, the freedom of political communication itself. 

MR DUNNING:   Yes.  We will come to deal with that.  Primarily, though, we would submit that in terms of testing the law against the implied freedom, one takes the law as it currently stands.  So, as I understand it, if we look at the tort of privacy, in Lenah the Court was unwilling to – I should not say “unwilling” - did not have the occasion for the reasons their Honours indicated, or at least the majority of them, to find that there was such a tort.  There is at least a District Court case that went on to find that there was not, but the general view seems to be that it remains an open question in Australia as to whether there will be a tort of privacy.  In terms of testing this legislation at the moment, one tests, in our submission, against what the general law currently is – not, ultimately, what it might become. 

GLEESON J:   Mr Dunning, I have two questions about the scope of the matter.  One is about the situation of Farm Transparency which, as I understand it on the special case, is not a third party that would be publishing material – although I might be wrong about that.  Are we dealing with a case relating to publication by a trespasser or are we dealing with a publication by a third party, or both?  The second question I have is that it is not clear to me how questions of confidentiality arise on the facts that are presented.

MR DUNNING:   Sorry, may I just inquire -…..have questions of confidentiality?

GLEESON J:   My understanding is that we are talking about publication of questions about animal cruelty – that we are not talking about publication of material that has been identified as confidential – that it might be a difficult question in relation to a particular fact pattern as to whether or not material would be confidential.  I am just trying to understand the ambit of the issues here.

MR DUNNING:   Certainly.  As to the first, the case is being conducted on the basis that we are dealing with somebody who is a recipient of the information that has been obtained by trespass.  I apologise for this, Justice Gleeson.  As a result of matters I do not need to concern your Honours with, my junior is not with me and I was trying to send him a text - I am very sorry to do this, Justice Gleeson.  Can I ask you just to repeat the confidentiality request again?

GLEESON J:   My question is about the extent to which we need to go into or hypothesise about whether or not material that…..in breach of section 11 would be confidential because, as I understand it, what we are dealing with here is information that would not be confidential.  It just is information that happens to be procured in relation to an activity that is done behind closed doors.

MR DUNNING:   Yes, and we would agree with the latter, that that is the situation.  One of the things that ultimately I will come back to when I develop our answer to the question Justice Edelman asked me is that the law around, for example, breach of confidence and whether a duty of confidence arises and whether it would be restrained in any event are all matters that demonstrate that this is an area of the general law in which the activities that 11 and 12 purport to prohibit presently does not operate.

GAGELER J:   Mr Dunning, are you going to take us to the detail of the special case at all?

MR DUNNING:   I was going to take your Honours to some of the detail but I was not – if there were particular aspects that your Honours wanted me to develop, I was going to but given the way the issues have drawn between the parties, the only matter I was going to focus on was a suggestion that, on the special case, we had not engaged section 7.

GAGELER J:   I see.  I do have a question about what we are to make of the affidavits that are annexed to the special case which contain some hyperlinks which I take the parties to intend to be a link allowing the Justices to look at the material on various websites.  Are we to draw an inference that the information obtained by trespass by Farm Transparency does or might in some circumstances disclose the commission of a crime, a breach of animal welfare legislation, or does that not form any part of your case?

MR DUNNING:   No, it does.  We would say that Farm Transparency as an innocent publisher in the sense of not somebody engaged in the conduct of the trespass but just receives the information, may well come to receive information that would reveal the conduct of offences in relation to animal cruelty, even something short of…..  Sorry, your Honours, my screen went black.  Can your Honours still see and hear me?

KIEFEL CJ:   Yes, your screen froze and we did not have any audio for a moment.  Could you just repeat what you were saying, Mr Dunning?

MR DUNNING:   Yes, of course, thank you, your Honour.  That as an innocent recipient of it, innocent in the sense of no involvement in the trespass, received the information or the audio or the video and, yes, that video might very well reveal mistreatment of animals that would either be an offence or be some regulatory breach.

EDELMAN J:   Is that part of your submission then as to incremental burden that there is no confidence, nor could there be privacy, in information that is an inequity or a wrong?

MR DUNNING:   Certainly that, Justice Edelman, but we would go further than that, that is, that for all practical purposes, a duty of confidence is unlikely to arise in the circumstances in which the information was obtained and certainly in – sorry, in the terms in which the information comes into our hands.

EDELMAN J:   At least for my part, at some stage you will probably need to explain what you mean by “confidence”, if you are going to stick with Australian law and deal with cases like Giller v Procopets where the term “confidence” is expanding into areas that might be described as privacy.

MR DUNNING:   Yes, certainly, your Honour.  Your Honours, can I then ask you please to go to the special case book and to the affidavit of Ms Kiss.  It starts on page 98 of the book, but the passage that I wanted to take your Honours to is in paragraph 27 on page 104.  It is said against us that we have only engaged section 8 in relation to sections 11 and 12.  In our respectful submission, that evidence demonstrates that we have engaged section 7 as well in relation to the making of audio recordings and, sorry, I should have taken your Honours to the legislative provisions in that regard first.

GORDON J:   Mr Dunning, under section 7 it relates to private conversations, which itself is defined in section 4.  I must say for my own part I cannot see where on the materials section 7 in that context defined by reference to private conversation is picked up on the materials, or engaged.

MR DUNNING:   Certainly, your Honour.  In our submission, it is adequately engaged in this way.  Farm Transparency is – as the special case reveals – a party who receives these sorts of – in this case – audio recordings and one cannot practically say any more than that, in the nature of the business that it conducts, it is from time to time receiving in the past, and therefore it expects in the future to receive not only video recordings but audio recordings.

GORDON J:   I am sorry, I did not make myself clear and I apologise for that.  I am more concerned with the specifics of section 7.  Section 7 deals with the installation, use and maintenance of a listening device for the overhearing of recording of private conversations.  That concept is defined to be limited to a conversation in which its circumstances may reasonably be suggested that nobody else was going to – or expected to overhear it.  I cannot find in the materials how that is engaged here.

MR DUNNING:   In our submission, an audio recording of such a conversation could be one that either comes within the definition of “private conversation” – which for the record is on page 49 of the book – or may not be.  At the stage of the special case one could not know necessarily whether that is what you would get in the future or not, but that does not, in our submission, make it hypothetical for this reason. 

The fact that because of what you do to promote animal welfare as Farm Transparency does, you receive, amongst other things, audio recordings – they may be audio recordings taken in circumstances where it would have been expected that it would only be between those persons, and sometimes it may not – but that does not gainsay the fact that if you were in the business of distributing audio that you received, that it is realistic to think that it may include that which would come within the definition of “private conversation” in the Act ‑ ‑ ‑

KIEFEL CJ:   Mr Dunning, this Court is not here to make findings of fact about pieces of information that have been attached to an affidavit.  The parties themselves at special case from paragraphs 10 onwards have identified what the plaintiffs have engaged in.  Relevantly, it is said that the second plaintiff, at paragraph 14, has engaged in activity that contravenes section 8.  There is no suggestion that the first plaintiff, or the second plaintiff, has engaged in a contravention of section 7.  Now, what are we to make of that?  This is what the parties have identified as the factual issues for the Court.

MR DUNNING:   I understand that, Chief Justice.  We would give reference to what appears a little earlier in the special case, at paragraph 1, which in about halfway through that paragraph, in effect incorporates the affidavit into the special case.

KIEFEL CJ:   That does not mean the facts are at large.  What are we supposed to make of paragraphs 10 to 18?  Are they not identifying what is the scope of the plaintiffs’ interest and standing and what the Court is to take from it?  If something was to be drawn from the affidavits, and the parties agreed to it, surely it would appear in these paragraphs.

MR DUNNING:   It would plainly be desirable that it would have, your Honour, yes.

KIEFEL CJ:   Why are you not limited to section 8 ?  It is most clearly what the plaintiffs are engaged in.  Why are you not limited to it?

MR DUNNING:   Your Honour, I have said that which I can say for it, that is to say that uncontroversially that paragraph appears in the affidavit which is incorporated into the book.  It is not picked up, I accept, in the crisp statement of fact that one sees in paragraph 14.  Nonetheless, it is uncontroversial in the sense that it is not controverted and the method by which it could engage section 7, I have really said all I think I can say usefully in favour of an answer earlier to Justice Gordon.  Ultimately, if what I have had to say so far is not persuasive on the point, I do not have anything additional that I can usefully add, your Honour.

Your Honours, can I then please move to the question of burden and justification.  The question of onus is now resolved – and that is it is an onus that falls upon the polity that has burdened the freedom – and we have given your Honours some references to Unions in that regard and, in particular, Justice Edelman, at paragraph 151, in Unions, collects the authorities that had led to the point of that position. 

Your Honours, what is perhaps not said as clearly but, in our submission, follows by parity of reasoning is that one assesses whether that onus has been discharged at the time of decision.  So, one looks to see whether a burden is justified by the material that is presented at the time of the hearing – tested by whether it would be a breach of the implied freedom at the time of the hearing. 

For reasons that will be apparent to your Honours, we place some emphasis on not only the alternative legislative schemes in places like Victoria, but the period of time for which it has been in place and that there is no identification of it producing an inferior outcome for the privacy that New South Wales is looking to protect but at a lower burden.

KIEFEL CJ:   Mr Dunning, before you go further into the question of burden, could I ask you just to confirm that the approach that the plaintiffs now ask the Court to take to section 11 is that the Court should proceed upon the basis of the presumption that a person who is publishing has knowledge of the fact of the offence, in sections 7 to 9.

MR DUNNING:   That is correct, your Honour, and we, in fact, deal with that a little later in the draft outline.  We see what our learned friends for the Commonwealth, in particular, had to say and we accept that one as a matter of construction to ensure that legislative power could – sorry, let me start that again.  We accept that the construction available would involve a mental element.  Our submission is your Honours need not decide that point.  We simply press the case on the basis of that assumption.  On the basis of - that question should await a case that squarely calls for it because on the way we put our case the difference in burden would be minimal so it does not make any difference and it should…..a case where it does.

KIEFEL CJ:   But it does make a difference, does it not, if it captures people who do not have knowledge?  So, it is important.  So, what is your position? 

MR DUNNING:   Our position is that as is propounded in our outline.  But the reason we say it is hypothetical – sorry, our position is that which we dealt with in our outline in reply.  We do not suggest that we are not people who do not have the knowledge which is why we had proposed what we thought was an expedient course for the dealing with the issue. 

KIEFEL CJ:   But the question as to the burden has regard to how the scheme operates more generally in relation to the implied freedom.

MR DUNNING:   Yes, I accept that, your Honour, and our response to that, as we endeavoured to make clear in our outline, is to say that the incremental difference in the burden in respect of 10 and 11 meant that one could usefully test without having to decide that question of whether there was that mens rea component or not.

EDELMAN J:   Mr Dunning, I do not understand that submission.  I mean, how is there not a very substantial difference in incremental burden between telling someone that irrespective of what they know about the provenance of information that they have been given, maybe even irrespective of any suspicion they have about the provenance of information that they have been given, they will be liable for a criminal offence if it ultimately turns out that that information is the direct or indirect result of the use for listening or optical device.  That is a very, very different burden from saying you cannot use stuff that you know has come as a result of a listening device or optical surveillance device.

MR DUNNING:   Justice Edelman, our response to that would be this.  The practicalities of it is if you receive information in this way, that is, somebody comes and gives you information of a video recording or an audio recording, then the implication that it would have been taken surreptitiously would be a high one.  So that practically the occasions on which you would get somebody who would genuinely not appreciate that the material had been obtained that way is likely to be rare, and it is on that basis that we would submit the difference in burden was not great.

EDELMAN J:   So your mens rea element is not knowledge, it is suspicion, or high degree of suspicion?  What is the test?

MR DUNNING:   No, it is knowledge, but practically if you receive a video of the kind, let us say in Lenah, it is unlikely, frankly, that you would not be fixed with knowledge that it had been taken by the surreptitious placement of the device.  That is the basis upon which we submit that the difference in burden would not be great.

KIEFEL CJ:   Mr Dunning, could I put it to you this way?  Is this a statement that goes too far, that it is part of the plaintiffs’ case that section 11 applies to a person who has no knowledge, or is not reckless, as to whether the record or report in question has been obtained by unlawful means?  Does that capture the plaintiffs’ position?

MR DUNNING:   I believe it does, Chief Justice.  I am sorry to ask but may I ask your Honour please to repeat it, it broke just slightly during the ‑ ‑ ‑

KIEFEL CJ:   That it is no part of the plaintiffs’ case that section 11 applies to a person who has no knowledge of or is not reckless as to whether the record or report in question has been obtained by unlawful means?

MR DUNNING:   Yes, it is, your Honour, yes.

KIEFEL CJ:   Thank you.

GORDON J:   Mr Dunning, I am sorry to labour this, may I just make this abundantly clear?  Is it your position that in 11 there are the two elements.  There is the physical element which is necessary and has to have a positive mental element and then there is what Justice Brennan describes in He Kaw Teh as the external circumstance, being the knowledge question to which you have just given an answer to the Chief Justice about, and that section 12 in a sense as a matter of operation operates before section 11 because in section 12 you can have possession where the external element is possession with knowledge, i.e., it is a mental element of – I withdraw that – a mental element of possessing, again with your description of knowledge that you just answered the Chief Justice with.

MR DUNNING:   Yes.

GORDON J:   Thank you.

GAGELER J:   A follow‑up question, Mr Dunning.  Why should section 12 operate only before the operation of section 11?  Where there is the publication of a film on the internet, why would not somebody downloading the film and inferring from its contents how it must have been created breach section 12?

MR DUNNING:   Yes.  I take the force of your Honours points so that prior to the download it might not be apparent, but afterwards it would be.  Your Honour, that might be – yes, that would be the situation.  Your Honour, I accept that, and I would qualify my earlier answer to that extent.  It seems, and this is the position New South Wales puts and it seems fairly to arise from it, 11 and 12 are directed at different things, and in particular one of the things 12 was directed at doing was picking up somebody who had published but not – sorry – who had but not published or could not unknow, effectively, what they had seen.  But ultimately Justice Gageler my answer to the question is yes, and it would qualify the earlier answer I had given. 

Your Honours, in our submission we accept as we must that that which is to be tested is incremental burden and that the existing legal protections and the state of the general law is a matter that is important in that regard, so that if it can be demonstrated that the general law operates in a way that sections 11 or 12 do, then the burden would necessarily be light in that regard and it could ‑ ‑ ‑ 

EDELMAN J:   Mr Dunning, is it unlawful for an employee, under this Act, to make surreptitious recordings of the…..on the premises, assuming the employee is lawfully on the premises at the time? 

MR DUNNING:   No.  As we understand the way it is put, and that would seem to be consistent with the Act, that if, in fact, you are lawfully on the premises, then any recordings you make will not be caught by this provision. 

EDELMAN J:   Does that not cause difficulty for your submission that any third party that receives an obviously surreptitiously recorded device will instantly have knowledge that that recording was obtained unlawfully?

MR DUNNING:   Your Honour, can I have a think about that question and return to it a little later?  Your Honours, in our submission the existing protections practically are not great, so that in reality 11 and 12 operate in a way that will have the consequence that an area that otherwise would be practically relevantly unregulated falls to be embargoed in the way those sections envisage. 

Your Honours, we hope we make that point most simply by reference to this Court’s decision in Australian Broadcasting Corporation  v Lenah Game Meats Pty Ltd.  Can I ask your Honours please to take up that decision?  For present purposes, your Honours, the factual issue is set out usefully in the headnote.  If I could simply ask your Honours to read the first paragraph that starts “Hidden video cameras”. 

As your Honours no doubt are aware, in the court below an injunction had issued in favour of the abattoir to restrain the ABC from publishing the contents of the video that had been surreptitiously taken.  That injunction was discharged in this Court and, your Honours, can I just give you the references to the manner in which a majority of the Justices did that to, we hope, illustrate the point of the limits that exist in terms of protecting confidence – the limits that exist in terms of protecting privacy at the general law.

If I can first of all, please, take your Honours to the reasons of Chief Justice Gleeson at paragraph 55 and whilst his Honour recognises that the law of confidence could provide such a remedy, his Honour goes on to make the point, as in this case, that the condition of confidentiality had to be fulfilled and if that could not occur then you would not have, as had been the case there, a basis for getting an injunction which would be, in effect, the general law equivalent to what sections 11 and 12 in their practical operation would do to somebody in the position of the ABC or Farm Transparency.  Your Honours, Justice Gaudron ‑ ‑ ‑

GORDON J:   Mr Dunning, I am sorry to interrupt the argument at this point, but Chief Justice Gleeson at paragraphs 46 and 47 recognised that the ABC was not somebody itself who had been involved or complicit in any impropriety or illegality and uses the words “being complicit in impropriety or illegality”.  At some point you might need to address that distinction in relation to Farm Transparency.

MR DUNNING:   Yes, certainly, your Honour.  I will in due course take your Honours to the recitation of the facts because – I will come back to that.  Your Honours, can I then give you the reference to Justice Gaudron’s reasons.  Her Honour’s reasons start at paragraph 58 and the relevant passage is at paragraph 61.  Then, your Honours, Justices Gummow and Hayne pick this matter up starting at paragraph 63 of their Honours’ joint judgment and if I can take your Honours please to paragraph 100.

At paragraphs 100 and 101 their Honours essay the capacity to get an injunction and what would be the circumstances for that.  What your Honours see, in our submission, from paragraph 101 is that on a practical level the capacity to restrain the invasion of privacy would be very limited indeed because the prospect of – well, as their Honours indicate, you are effectively left to run a copyright case and one would run into the obvious difficulties in that regard. 

Justice Gordon, may I return to the question your Honour asked me a little earlier, and can I direct your Honours’ attention to paragraph 24 in Chief Justice Gleeson’s reasons under the heading “The facts”.  So that when the Chief Justice makes the reference to “complicit” that your Honour referred to a little earlier, what his Honour is doing, in our submission, in that language is drawing a distinction between somebody who was involved in the obtaining of it, as opposed to somebody else who was a recipient of it. 

As the Chief Justice’s reasons indicate, consistent, in our submission, with the submissions we made a little earlier, it is going to be in the nature of this material that it will ordinarily be apparent, if not irresistible, to the recipient of it that it must have been the product of a surreptitious recording.

So, your Honours, it follows from that that, in our submission, practically 11 and 12 operate to prohibit that which the general law would, certainly as it presently stands – and that is what it must be tested against, in our submission – what the general law would not intervene to prevent for a person who was solely a recipient of the information, even one who was aware that it had been sourced surreptitiously and ultimately, in our submission, the surest guide to the answer to that question is this Court’s holding in Lenah. 

It was precisely the fact situation we are concerned with here, surreptitious videoing of the possum abattoir.  It is provided to somebody who is known to want to promote animal causes and concerned about the production in abattoirs and then causes it to be published.  The abattoir itself is concerned as to the damage that would be done to its privacy.  It applies for an injunction and gets all the way to this Court to be resoundingly told that no such relief was available to prevent its publication.  Now, it is in that space that sections 11 and 12 operate, in our submission.

EDELMAN J:   Mr Dunning, was it not important, at least to the reasons of Justices Gummow and Hayne, that the abattoir was a corporation?

MR DUNNING:   It was, yes.

EDELMAN J:   So, to the extent that it is an individual’s rights that might be involved the burden might be different.

MR DUNNING:   In our submission, Justice Edelman, as the law presently stands, no, because there is not an authoritative statement to say the District Court decision that seems adopted but, to the best of my knowledge, the tort of privacy which you would need first and from then you would need to demonstrate that an interlocutory injunction would issue to protect and damages would not simply be an adequate remedy, that on the current state of the law you could not presently say that sections 11 and 12 are simply replicating a protection that exists for an individual – one, because it is not clear as to whether there is such a tort of privacy and, secondly, whether it would be supported by an injunction.

That second point is no trifling matter because if we look at defamation which has a close analogue – at least in so much as it is concerned with personal dignity and reputation and how it might be impaired – injunctions to restrain defamatory publications are rare indeed – so to the extent it was considered appropriate to look beyond the current settled state of the law and say, might it be that an individual would enjoy a right to privacy, that would only take one part of the way.  The next step would be to say, even if it did, would it, in fact, produce a right to an injunction, and bear in mind that this injunction would be against a third party.

EDELMAN J:   Mr Dunning, why is an injunction relevant at all?  If there is no right to defame someone, or no right to engage in the conduct that was engaged in in a case like Lincoln Hunt or a case like Giller v Procopets then why would it matter whether the court would ultimately award an injunction or not?  If there is no right to engage in that type of conduct, then there is no liberty to do so.

MR DUNNING:   That would mean the general law would say there is not a right to pass on material that you have received in a way that is blameless at your end.  A different situation might obtain for the trespasser but for the mere recipient of the information – even one that knows – the question then is what civil wrong would that person engage in that would be comparable to or, at least, in some meaningful way overlap with the territory picked up by sections 11 and 12? 

When one looks at the way the case is put against us by our friends, they identify these causes of action but the difficulty, ultimately, is that as against a person who is simply a recipient of the material, finding such a cause of action is difficult indeed – and we do not shy away, though, from beyond that that when one looks at the practical application of - this law and its practical application, if its consequence is to prevent publication by the third party, then it will only be a small incremental burden if it can be demonstrated that there is some general law provision that would also have prevented a third party from publishing. 

That is why, in our submission, it is relevant.  For example, the sparing way in which an injunction might grant relation to defamatory material and does not gainsay the fact that such injunctions are rare but, in any event, the test here is not against the party who is defamed but, practically, against a party who receives the defamatory material and would want to pass it on.

I accept that nice questions might then arise as to whether that is defamatory as well.  But, for the purpose of testing this proposition, we are concerned with the party who simply receives it and wants to use it in aid of the causes that it considers important.  To work out whether the burden is incremental, one is left to find in the general law something that would practically have a like effect or at least significantly overlap with it.

GAGELER J:   Mr Dunning, my question is this.  When you are looking at the incremental burden and you are taking the general law, that is the common law and equity as your baseline, and you are considering how the general law might develop, is it not necessary to bear in mind that the general law itself must be moulded to the implied freedom that is…..from Lange.

MR DUNNING:   It is, sorry, I did not mean to cut across, your Honour, but yes, that is correct.

GORDON J:   Mr Dunning, can I ask a more basic question.  If we are limited to the interaction between sections 8, 11 and 12, the fundamental proposition which underpins section 8 is trespass, so that section 8, combined with 11 and 12, not only does not, as I understand you accept, extend to employees, but also does not extend to somebody standing outside a property and videoing in, without needing to trespass.  In other words, the conduct which is unlawful from the beginning, and which it attacks is the trespass itself. 

Do you doubt that proposition?  In other words, one starts with the incremental burden and says, I need something unlawful to start with, that which the statute recognises as being the trespass for the purposes of section 8 and then the second question is, having identified that that is itself unlawful, is it not necessary to then distinguish between somebody – which I think I have asked you this before by reference to 47 of Chief Justice Gleeson’s judgment in Lenah Meats but also the US authority of Bartnicki which also draws a distinction between someone who has been involved in the unlawful conduct and someone who has not.

MR DUNNING:   For our purposes, one looks to section 8 and yes, if you had a party who in effect was a party in the received understanding of that to the offence under section 8, that is the person who ensures that that surreptitious recording occurs, then yes that person would be in a different position.  But, in the present case, there is nothing in the materials that suggests Farm Transparency is in that position.  So, we are concerned with a person who is simply the recipient but not a participant in ‑ ‑ ‑

GORDON J:   But is not the second plaintiff a participant in then, on the materials?  In other words - that is my point.  There is a distinction even on your own case.

MR DUNNING:   Yes.

GORDON J:   Your second plaintiff would not have any complaint.

MR DUNNING:   Sorry, I was answering a question from Farm Transparency’s point of view.  Yes, there is evidence on the material in relation to the second plaintiff.

GLEESON J:   Mr Dunning, what is the position of recordings that are obtained by a drone?

MR DUNNING:   Your Honour, it is difficult to see how such a recording would in fact be – the reason I am tentative about answering the question, Justice Gleeson, is this.  If one stood the drone well above the property, then it is hard to see – to give an extreme example, a satellite picture would not engage section 8 – but there would come a point where, if the drone was in effect passing through the premises, albeit still in the air obviously, that it could meet the description of ‑ ‑ ‑

EDELMAN J:   Well, Mr Dunning, this is where your reluctance to engage in any development in the law runs into your own submissions because Victoria Park Racing would suggest that there is nothing unlawful at all, and so, if one embraces wholeheartedly the majority in Victoria Park Racing and says that there is no room for development of confidence into areas of privacy, then it must be that footage by drones would be lawful under this Act, and under the general law. 

MR DUNNING:   Our answer to that, respectfully, your Honour, is not necessarily, because the drone could ultimately end up flying through the premises at a height that would actually meet the description in section 8(1) of using or maintaining an “optical surveillance device” within the premises.  It might even come within the description of “on”, but certainly “within”. 

So, in Victoria Park Racing, the person was able to view what was happening on the racetrack without in any way doing other than just enjoying the amenity of the property whereas in the situation of the drone, if one envisages that one could have a drone that, in effect, flies through the property, then yes, it would, because it would be at least using an optical surveillance device within the premises. 

So, let us give an example.  If you wanted to go through a factory that produced eggs, obviously it is going to be large stores, things like that, you may well have a drone that can pass through that, and yes, that would, in our submission, breach section 8(1). 

Sorry, Justice Edelman, I might return to a matter your Honour raised with me.  I do not mean not to engage with either your Honour’s question or the topic generally, but our submission is that when one goes to test one does have to look at the law as it is, rather than ultimately speculating – and I make this submission authoritatively – as to where it might end up, because one does not know with sufficient certainty what that might look like.

Your Honours can I then move please to legitimate purpose.  I have already taken your Honours to section 2A of the Act and the stated purpose, and sections 11 and 12 are obviously a particular extension or application of the privacy consideration in 2A, and in particular a recognition that despite the prohibitions in sections 7 to 10, nonetheless surveillance material might come into existence and we accept that that is a legitimate purpose for the State of New South Wales to legislate in respect of. 

But, in our submission, that becomes an important consideration in assessing the validity of this law because its stated purpose is the protection of privacy.  Yet, as we apprehend not only from the written submissions but also paragraphs 6 to 10 of our learned friend’s oral opening, there is at least a dimension of what these sections 11 and 12 are designed for.  It is to in effect disincentivise farm trespass as an additional legislative purpose, and we have given your Honours the submissions we made in this regard in paragraph 6 of our oral summary.

Now, in our submission, that is significant because it is a recognition that sections 11 and 12 do have an operation in relation to non‑private activity and, therefore, matters not concerned with privacy, and in our respectful submission, to the extent that 11 and 12 operate in respect of that non‑private activity they are not apt to be justified by a purpose that deals with privacy, and your Honours will recollect the other purposes ‑ the statutory purposes are not concerned with this issue.

KIEFEL CJ:   Mr Dunning, though on one view sections 11 and 12, as you say, when they try to disincentivise someone from carrying out an offence under sections 7 to 10, section 8 here in particular, is that not reinforcing the notion of privacy and the likelihood that someone will not interfere with it?  I mean, it is in aid of the purpose of privacy for the purpose of section 8, is it not?

MR DUNNING:   Yes, I think the expression I might have used at the outset is that they seem to be there to better secure…..the intention of 8 but probably ‑ ‑ ‑

GAGELER J:   Mr Dunning ‑ ‑ ‑

MR DUNNING:   Yes, your Honour.

GAGELER J:   I did not mean to cut you off, Mr Dunning.

MR DUNNING:   No, I think I have answered the Chief Justice’s question.

GAGELER J:   You have truncated the purpose in your summary in paragraphs 5 and 6.  Section 2A(c) refers to “the privacy of individuals”.

MR DUNNING:   Yes. 

GAGELER J:   If you have an abattoir owned by a corporation at which mechanised processes are occurring and there is a film of those mechanised processes in breach of section 8, would that film be caught within section 11?  I mean, what I am really wanting to explore is whether the activity that is caught within section 11 needs to be the activity of individuals at all, whether it needs to be the private activity of individuals – whatever that might mean – and whether it matters that the film does or does not disclose the identity of any individual.

MR DUNNING:   Well, if one goes to 11(1) there is obviously the prohibition on the publisher of a communication – sorry, of a private conversation, or the carrying on of an activity.  Now, if we take the abattoir, there will be, let us say, an audiovisual record that, as your Honour has indicated, shows a mechanised process, no doubt showing people who are not easily identified because they will be dressed for the work that they are employed to do.  It might no doubt capture part of their private conversations, but it would also capture part of the activity that is going on.  Yet none of that could be said to in any way impeach the privacy of the workers who are inside the premises. 

But what it is in fact doing is making a record of how a commercial enterprise is operating.  It is not in fact engaging with the privacy or personal dignity or autonomy of people in question.  I accept there might be circumstances where it does, but if we take the illustration your Honour has just given, that would be the outcome, yet section 11 would be sufficient to pick up that situation.

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

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

KIEFEL CJ:   Yes, Mr Dunning.  Mr Dunning, I think you are muted.

MR DUNNING:   I was.  My apologies, your Honours.  Your Honours, can I just close out an exchange I was having with the Chief Justice before we broke.  We accept that 11 and 12 might be seen as assisting or better securing the compliance with 7 and, whilst we accept that as a matter of – for the stated purpose that is acceptable, we would make the submission that when one comes to the question of justification, a high level of justification would necessarily follow in circumstances where the immediate question would be if you want to ensure compliance with 8, and you not currently getting compliance with 8, increase the tariff for its breach, and that a resort to impairing the freedom of communication would require high justification if that is the purpose that it is to achieve.

Can I then move to the constructional issues?  This takes us to about paragraph 8 of our summary.  Your Honours, in our submission, when one comes to look at how the provisions operate, it is shown that they are a poor fit for provisions that are said to be in aid of ensuring privacy.  I had an exchange with Justice Gageler, shortly before we broke, as to the manner in which section 11 was capable of operating.  Ultimately, when one looks at 11 insofar as it deals with a video recording of an activity, it is capable of going as far as a situation that involves no person, no natural persons at all and simply picking up the activity.

When one sees it in that context it is, in our submission, at a minimum a very poor fit for something that is said to be endeavouring to better secure the attributes of – obviously, we do not quibble with the importance of that.  Other matters point to this as well.  If we give your Honours the reference to the defendant’s submissions at paragraph 40 – in effect, it said that the exception in 7(3)(a) appears to be engaged – if consent to the recording is obtained without attention being given to the publication.  It seems to follow then, in relation to section 11, that however that consent is obtained, publication would not contravene section 11.

Similarly, if we can give your Honours the reference to paragraph 40 of the defendant’s submissions and the situation where it said somebody might obtain consent to be on the occupier’s property but then once lawfully there is in a position to covertly engage in the optical surveillance.  Again, so it said, the record could be published without infringement of section 11. 

All of this serves, in our submission, to illustrate that 11 is not a provision that is astute…..protect privacy of an individual as is contemplated by the purposes but rather an uncalibrated protection that does not discriminate between people, corporations, events and the like. 

If we can give the illustration of how it might matter.  If we return to Lenah Game Meats.  There we were concerned with an activity that was not a private activity and did not bring to bear issues of personal privacy.  Yet, section 11 would – were it to have existed at the time and be in New South Wales – have been engaged which, in our submission demonstrates a lack of rational connection between the stated purpose and the law’s application.

Your Honours, can I then move to the question of necessity?  In our submission, it is at this point that New South Wales fails in the discharge of its onus that the law is necessary.  The reason we make that submission is, our submission is that there are compelling alternatives that would meet the test. 

Can we start this by developing this.  New South Wales in their written submissions carefully develop a number of matters that they say their law responds to or does not respond to in contradistinction to, let us say, the Victorian legislation, but, in our submission, that is ultimately to do that which is criticised in the cases, and that is just assessing the relevant merits of various pieces of legislation when the proper point of inquiry in relation to necessity is to ask those well‑settled questions as to whether this is a reasonably practical alternative that will in effect produce as efficacious an outcome but at a lower burden. 

The formulation of the test is directed not at a minute analysis section by section of how various pieces of legislation operate – not to say that in many cases that will not be important, and it does not have an importance here.   But ultimately one is looking to the efficacy of the legislation – the legislative scheme - to achieve the stated purpose, and then comparing whether there is a greater or lesser burden on the freedom in that regard. 

Can we give your Honours, please, some references to those cases that we consider particularly inform this discussion.  Can we start with the joint judgment in LibertyWorks of your Honours Chief Justice Kiefel, and Justices Keane and Gleeson at paragraph [80]. 

KIEFEL CJ:   Could you give us the tab reference, please, Mr Dunning. 

EDELMAN J:   Tab 48.

MR DUNNING:   Thank you, Justice Edelman.  Your Honours will see at paragraph [78] on page 509, that the classic formulation of the test is set out there, and can I then take your Honours please to the opening sentence of paragraph [80] and, in our submission, that is, certainly in the circumstances of the present case, an appropriate way to approach the matter.  Could I also give your Honours ‑ ‑ ‑ 

KIEFEL CJ:   Mr Dunning, paragraph [80] says a provision “which could readily be applied to the statutory scheme”.  That is part of the question here, is it not ‑ ‑ ‑ 

GORDON J:   Chief Justice, I am sorry to interrupt, but we seem to have lost Justice Gageler. 

KIEFEL CJ:   I am sorry.  Thank you, Justice Gordon.  Justice Gageler, are you there?  We will have to adjourn shortly.  The Court will adjourn until we can re‑establish connection.

AT 11:43 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.49 AM:

KIEFEL CJ:   Mr Dunning, I think you were referring to paragraph [80] of LibertyWorks - - -

MR DUNNING:   I was.

KIEFEL CJ:   I was directing your attention to the description there in the first sentence of being the alternative – being a provision:

which could readily be applied to the statutory scheme in question.

As I understand what is put against you is the statutes in other States involve a different kind of scheme, so you would be transplanting a provision from a different scheme into the scheme of the New South Wales Act on the arguments, as I understand them.

MR DUNNING:   Yes, our response to that – and it is really reflected in the approach we take to severance, which we deal with at the end of the document, is that it would not involve transplanting one legislative scheme for another, it would simply see New South Wales arrangements operate in a way so that they did not impair the implied freedom – so it would be free to have made its own choices as to how it regulated these activities.

So, for example, if, in the name of privacy, it said that in the activity that is caught by a surreptitiously located device is an offence, and any person who comes to receive it, even though not personally involved in the procuring of it, commits an offence.  If, from that, the operation of severance is to take away the operation of the Act to the extent it applied to political communication, in our submission it would not exhibit the vice of supplanting one statutory scheme for another.  It would leave intact the way it had been approached by New South Wales up to the limit of its legislative power.

KIEFEL CJ:   But, what is it that you say – what is the equally efficacious alternative which could be introduced into the scheme to have the effects that you refer to?  Is it just the public interest question.  Is that it?

MR DUNNING:   Correct.

KIEFEL CJ:   But you are transplanting from a scheme which has a different starting point to which the public interest exception refers into a scheme which is quite different, are you not?  That is the point that I think is being made against you.

MR DUNNING:   It is and the response that we make to that point is the test does not require the demonstration that you – sorry, let me start again.  It is not to impair the right of New South Wales to make its own choices as to how it regulates activities, like, for example, the installation surreptitiously of video recording devices to place a limit on it in relation to political communication – that is to recognise the limit on legislative power and the fact that that may apply to a differently constructed statutory schema is not to supplant one for the other. 

In fact, in our submission, it is to do the opposite because it is not to say, well New South Wales’ scheme is all bad and it should have a scheme like Victoria.  It is to say that you can have differently constructed schemes but still protect this value.  Otherwise, the ability to look to other legislatures and how their legislation has been enacted, and how it is performed – which, in our submission, is a sure guide to the – whether it is equally effective and practicable – would mean that would only ever work if there was a close correlation between one statutory scheme and the other.  But, our submission is that the inquiry is a different one. 

The inquiry of necessity is one that looks at the scheme as it is enacted against the purpose for which it has been enacted and says, well, is that purpose being pursued elsewhere and is there a manner in which it might be pursued with equal effect, but a lesser impact on the freedom?  If our position was to say, well, all of these different provisions need to be struck out so that ultimately they came to regulate privacy much more like Victoria did, it would exhibit, in our submission, that vice. 

But to limit it in the way that we have, in our submission, is to recognise that one is when testing the law against the implied freedom asking at the necessity stage, well, is there another alternative to what is occurring here, and one can usefully test that by saying, well, the same societal issue is exhibited everywhere throughout the Commonwealth and different polities have taken quite different approaches to that, and we accept that there are some significant differences.  The Queensland Act is quite different to the other polities. 

But the question ultimately we are asking is not generally what have they legislated in relation to.  The question we are asking is, is this imposition on the freedom necessary, and that focuses attention on what it is that the legislation’s purpose is and the way in which it is being achieved.  If that purpose, albeit by a different legislative route, is being secured elsewhere and in a way that has a lesser burden on the freedom but is equally practicable – it might not be identical but it is equally practicable – then, in our submission, the test will be met.

GORDON J:   Mr Dunning, you have mentioned a couple of times and at the outset your reliance on the Victorian schema.

MR DUNNING:   Yes.

GORDON J:   Is that the one which you now have just identified as being something which has been secured elsewhere by a lesser burden on the freedom?

MR DUNNING:   Yes.  It is not the only one.

GORDON J:   I wonder if I might just test that proposition.

MR DUNNING:   Of course.

GORDON J:   As I understand the Victorian schema, it is a scheme which seeks to prohibit the recording of private activities.  It then carves out of that exception - that prohibition a public interest exception.  But that exception and prohibition applies irrespective of whether the record or the report is obtained lawfully or unlawfully, which would seem to be a greater imposition or burden on the implied freedom.

MR DUNNING:   That is correct.  It does apply whether lawful or unlawful, but when one comes to have a look at ‑ ‑ ‑

GORDON J:   So how is that – so what aspect – is it an aspect of the Victorian schema that you therefore rely upon as imposing a lesser burden on the freedom?  I am just not clear what is the equally effective provision you rely upon, given your concession – rightly made, I must say, I think – that the Victorian scheme imposes a greater burden on the freedom.

MR DUNNING:   Your Honour, the Victorian scheme applies both to lawful and unlawful conduct, in contradistinction to the New South Wales scheme that only applies to unlawful conduct.  But the ultimate point of inquiry is in relation to the burdening of the freedom in the law’s practical application.  

Now, in the practical application of the law about the surreptitious filming of people’s activities, the distinction between lawful and unlawful will, in our respectful submission, not greatly impact on the matter if the focus of the inquiry is on personal privacy.  So, yes, it is true that the Victorian legislation operates more widely in that it picks up lawful activities, but that does not present a difficulty in relation to the implied freedom because that is the very thing that it provides an arrangement to step outside of.

Then perhaps in the strongest terms of all, the judgments of your Honours Justices Gordon and Edelman, Justice Gordon examined this issue in some detail, starting at paragraph 357 on page 443 under the heading “Wider legal framework”.  Your Honour said in the second half of that paragraph:

An examination of that wider legal framework demonstrates that the conduct that is addressed by the impugned provisions was and remains substantially unlawful conduct . . . That framework was and remains -

That is, the existing framework:

a constitutionally valid baseline.

Then jumping on still in your Honour’s judgment to paragraph 393 on page 455:

Any challenge to the validity of legislation (including legislation . . . directs attention to what that law does over and above the existing legal framework.

Over the page at 397, the end of that paragraph:

To the extent that the impugned law is congruent with the existing law, it is any incremental burden that needs justification -

citing Levy and Mulholland.  Then on a couple of pages to paragraph 411, your Honour said:

The overlap between the conduct prohibited by the impugned provisions and the conduct prohibited by the existing wider legal framework may not be perfect . . . But the overlap not only exists; it is substantial and cannot be ignored . . . If there are differences in the scope of the prohibitions, those may also be said to form part of the incremental burden, alongside the additional sanctions and increased penalties for existing prohibitions.  What is presently relevant is that the incremental burden is small and it is the identification of that incremental burden that “serves to focus and to calibrate the inquiry” required in assessing the constitutional validity of a law -

citing Tajjour.  Finally, your Honour Justice Edelman’s judgment, if your Honours could turn to 557 on page 502.  Your Honour was addressing the question was the freedom burdened at all, and there is a heading “Legislation in relation to unlawful conduct cannot burden the implied freedom”, and your Honour says right at the end of that page:

If the conduct about which legislation is concerned is independently unlawful, so that there was no legal freedom to communicate about government or political matters, then there can be no “burden” on the freedom.  The implied constraint upon legislative power cannot operate.

Then in the next paragraph near the end, second‑last sentence:

The Constitution does not create spheres of immunity from unlawful activity -

leading your Honours to conclude at 566 that there was no burden imposed by the Act.  So I have done that quickly, your Honours, because I do not apprehend there to be a great…..but, as we read Brown, all of your Honours accepted that in a case – in the context of identifying the extent of the burden, which in this case is a critical issue, the relevant focus is upon the incremental burden, what in practical terms a person is prevented from doing by the impugned law that they were otherwise free to do, and it is only to the extent of that incremental burden that a justification is necessary, the size of that gap or that incremental burden then being an important calibrating factor in applying the necessity and adequacy in balance steps of the analysis, as was accepted in LibertyWorks. 

So that is the legal framework that causes me to come then to the two particular respects in which we submit that the existing law substantially overlaps with the operation of section 11.  I do not take on the burden of asserting that there is complete overlap, but substantial overlap which, as Justice Gordon pointed out in one of the passages I read, cannot be ignored even though there is not complete congruence, and that the two particular respects in which we refer to a pre‑existing state of affairs that imposed relevant limits both concern the operation of equitable doctrine, the first being the law of breach of confidence.

To address that, your Honours, it is sufficient I think for me to take your Honours, albeit perhaps in a little detail, to the judgment of Chief Justice Gleeson in ABC v Lenah Game Meats (2001) 208 CLR at 199, which is in volume 2, tab 15 of your Honours’ materials. Your Honours were reminded by my friend this is a hidden video camera installed in an abattoir, a case of publication by a third party.

Can your Honours go, in the Chief Justice’s judgment, to paragraph 34, where his Honour begins his analysis of the breach of confidence‑type issue by pointing out that, on the facts of this case where there was the hidden camera in the abattoir:

there was no relationship of trust and confidence between the respondent and the people who made, or received the film . . . such information was not confidential in its nature –

So, those two things are a premise for what follows:

But equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence.  The nature of the information must be such that it is capable of being regarded as confidential.  A photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, may constitute confidential information.

So, this is the start of the discussion – and your Honour Justice Edelman, I think, asked some questions this morning that referred to this – of the development in the law of breach of confidence in favour of including a category of private information even if that information was not imparted in the context of a relationship of trust or confidence.

KIEFEL CJ:   Mr Solicitor, are you saying that the Chief Justice is stating the law as it is or the law as it may be developed?

MR DONAGHUE:   Your Honour, I think the law as it is, is my understanding of his Honour’s judgment.  He cites – and I will take your Honours to them – a number of cases to make good that proposition.  So, indeed, I will take your Honours to a paragraph in one moment, but I think the law as it is is how I would answer your Honour’s question.  His Honour points out, at paragraph 35, at the end, that the problem presented by the case was that:

The activities that were filmed were carried out on private property.  They were not shown . . . to be private in any other sense.

So, that was what presented the issue.  His Honour, in paragraph 37, talked about a case involving the filming of a celebrity wedding with 250 guests and the question of whether photographs of that are or are not in the confidential category.  He then, in paragraph 38, notes the attempt to develop - the invitation to the Court to develop the tort of invasion of privacy and responds at paragraph 39 – and this is one of the reasons I answered the Chief Justice as I did:

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

already – I interpolate “already”:

adequate to cover the case.  I would regard images and sounds or private activities, recorded by the methods employed in the present case, as confidential.  There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained.

So that is, as we understand it, a statement by the Chief Justice of the existing law of breach of confidence extending to private activities and including an obligation not to on‑publish by persons into whose possessions they come if they have even a knowledge or constructive knowledge. 

If one juxtaposes that with the mental element now conceded, in section 11, of knowledge, one can see a considerable overlap between the people who section 11 prevents from on‑publishing and the people who the law of breach of confidence prevents from on‑publishing – provided that the information is properly to be identified as a private activity.  I need to develop what his Honour says about that, but I note the time, your Honour, so I am happy to press on but that might be appropriate.

KIEFEL CJ:   Yes, thank you, Mr Solicitor, it is.  The Court will now adjourn until 10.00 am tomorrow.   

AT 4:14PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 11 FEBRUARY 2022