KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
FARM TRANSPARENCY INTERNATIONAL LTD & ANOR PLAINTIFFS
AND
STATE OF NEW SOUTH WALES DEFENDANT
Farm Transparency International Ltd v New South Wales
[2022] HCA 23
Date of Hearing: 10 & 11 February 2022 Date of Judgment: 10 August 2022
S83/2021
ORDER
Questions 2 and 4 of the questions of law stated for the opinion of the Full Court in the amended special case filed on 6 October 2021 be amended, and the questions stated in the amended special case (as further amended) be answered as follows:
1.Does section 11 of the Surveillance Devices Act 2007 (NSW) impermissibly burden the implied freedom of political communication?
Answer, "Section 11 does not impermissibly burden the implied freedom of political communication in its application to the communication or publication by a person of a record or report of the carrying on of a lawful activity, at least where the person was complicit in the record or report being obtained exclusively by breach of s 8 of the Surveillance Devices Act. It is unnecessary to determine whether s 11 burdens the implied freedom of political communication in other applications".
2.If "yes" to Question 1, is s 11 of the Surveillance Devices Act 2007 (NSW) able to be partially disapplied in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?
Answer, "If s 11 were invalid in some of its operations, it could be partially disapplied to the extent of that invalidity. Otherwise, this question is unnecessary to answer".
3.Does section 12 of the Surveillance Devices Act 2007 (NSW) impermissibly burden the implied freedom of political communication?
Answer, "Section 12 does not impermissibly burden the implied freedom of political communication in its application to the possession by a person of a record of the carrying on of a lawful activity, at least where the person was complicit in the record being obtained exclusively by breach of s 8 of the Surveillance Devices Act. It is unnecessary to determine whether s 12 burdens the implied freedom of political communication in other applications".
4.If "yes" to Question 3, is s 12 of the Surveillance Devices Act 2007 (NSW) able to be partially disapplied in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?
Answer, "If s 12 were invalid in some of its operations, it could be partially disapplied to the extent of that invalidity. Otherwise, this question is unnecessary to answer".
5.Who should pay costs?
Answer, "The plaintiffs should pay the defendant's costs".
Representation
P J Dunning QC with A Aleksov for the plaintiffs (instructed by Bleyer Lawyers Pty Ltd)
M G Sexton SC, Solicitor-General for the State of New South Wales, with M W R Adams for the defendant (instructed by Crown Solicitor's Office (NSW))
S P Donaghue QC, Solicitor-General of the Commonwealth, with T M Wood and J…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Farm Transparency International Ltd v New South Wales [2022] HCA 23
Case
[2022] HCA 23
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered whether certain provisions of the *Surveillance Devices Act 2007* (NSW) impermissibly burdened the implied freedom of political communication. The case involved Farm Transparency International Ltd as the plaintiff and the State of New South Wales as the defendant. The core of the dispute concerned sections 11 and 12 of the Act, which prohibited the publication, communication, or possession of records or reports obtained in contravention of section 8 of the same Act, which itself prohibited the knowing installation, use, or maintenance of an optical surveillance device on premises to record an activity where such action involved trespass.
The legal issues before the Court were whether sections 11 and 12 of the *Surveillance Devices Act 2007* (NSW) impermissibly burdened the implied freedom of political communication. This required the Court to determine if these provisions were enacted for a legitimate purpose and, if so, whether they were suitable, necessary, and adequate in their balance, applying the structured proportionality test. The Court was also asked to consider whether these provisions could be partially disapplied if found to be invalid in their operation.
The Court reasoned that sections 11 and 12 did not impermissibly burden the implied freedom of political communication in their application to the communication, publication, or possession of a record or report of the carrying on of a lawful activity, provided the person involved was complicit in the record being obtained exclusively by breach of section 8. The Court found that these provisions served a legitimate purpose of preventing the dissemination and possession of illegally obtained surveillance material. The Court concluded that, in the specific circumstances outlined, the burden on political communication was not impermissible.
The Court answered the questions of law by stating that section 11 does not impermissibly burden the implied freedom of political communication in its application to the communication or publication of a record or report of a lawful activity where the person was complicit in the record being obtained exclusively by breach of section 8. Similarly, section 12 does not impermissibly burden the implied freedom of political communication in its application to the possession of such a record. The Court also noted that if either section were found to be invalid in some operations, it could be partially disapplied. Finally, the Court ordered that the plaintiffs pay the defendant's costs.
Orders
Orders of the court
Questions 2 and 4 of the questions of law stated for the opinion of the Full Court in the amended special case filed on 6 October 2021 be amended, and the questions stated in the amended special case (as further amended) be answered as follows:
1. Does section 11 of the Surveillance Devices Act 2007 (NSW) impermissibly burden the implied freedom of political communication?
Answer, "Section 11 does not impermissibly burden the implied freedom of political communication in its application to the communication or publication by a person of a record or report of the carrying on of a lawful activity, at least where the person was complicit in the record or report being obtained exclusively by breach of s 8 of the Surveillance Devices Act. It is unnecessary to determine whether s 11 burdens the implied freedom of political communication in other applications".
2. If "yes" to Question 1, is s 11 of the Surveillance Devices Act 2007 (NSW) able to be partially disapplied in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?
Answer, "If s 11 were invalid in some of its operations, it could be partially disapplied to the extent of that invalidity. Otherwise, this question is unnecessary to answer".
3. Does section 12 of the Surveillance Devices Act 2007 (NSW) impermissibly burden the implied freedom of political communication?
Answer, "Section 12 does not impermissibly burden the implied freedom of political communication in its application to the possession by a person of a record of the carrying on of a lawful activity, at least where the person was complicit in the record being obtained exclusively by breach of s 8 of the Surveillance Devices Act. It is unnecessary to determine whether s 12 burdens the implied freedom of political communication in other applications".
4. If "yes" to Question 3, is s 12 of the Surveillance Devices Act 2007 (NSW) able to be partially disapplied in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?
Answer, "If s 12 were invalid in some of its operations, it could be partially disapplied to the extent of that invalidity. Otherwise, this question is unnecessary to answer".
5. Who should pay costs?
Answer, "The plaintiffs should pay the defendant's costs".