Farm Transparency International Ltd v New South Wales

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.