In the Matter Of Greyhound Racing SA Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
IN THE MATTER OF GREYHOUND RACING SA LTD
[2023] SASC 63
Reasons for Decision of the Honourable Justice Stein (ex tempore)
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - LISTENING DEVICES AND SURVEILLANCE DEVICES
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - WARRANTS AND AUTHORISATIONS
Greyhound Racing SA applied for orders pursuant to ss 10 and 11 of the Surveillance Devices Act 2016 (SA) to enable the use of two digital files, depicting the use of live rabbits as lures, for the purposes of inquiries to be conducted into potential breaches of the Rules of Racing and any disciplinary proceedings and appeal.
Held: It is consistent with in the public interest to make the orders sought to enable the digital files to be used in the manner proposed. Application granted.
Surveillance Devices Act 2016 (SA) ss 10, 11, referred to.
Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129; O’Sullivan v Farrer (1989) 168 CLR 210; Osland v Secretary of the Department of Justice (2008) 234 CLR 275; Farm Transparency International Ltd & Anor v State of New South Wales (2022) 403 ALR 1; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, considered.

IN THE MATTER OF GREYHOUND RACING SA LTD
[2023] SASC 63
Civil: Application

STEIN J: The applicant, the Greyhound Racing SA Limited, which I will refer to as GRSA, is an Australian registered not-for-profit private company that serves as the regulatory body of greyhound racing in South Australia.
On 23 August 2022 the GRSA received by email from an anonymous source a link to an online cloud drive. The drive held a zip file containing two video files that I will refer to as the digital files. The digital files recorded vision taken by a video camera which also captured sound. The digital files depicted the use of live rabbits as lures for greyhounds.
Application
On 3 March 2023, the GRSA filed an application pursuant to ss 10 and 11 of the Surveillance Devices Act 2016 (SA) (“SDA”) seeking orders authorising the GRSA’s use, and communication, of information about material derived from use of an optical surveillance device in the public interest. The purpose of the application is to obtain orders which will enable the GRSA to use the video footage in proceedings against certain individuals.
Those individuals were served with the application and joined as interested parties to give them the opportunity to be heard on the application. The interested parties did not make substantive submissions on the hearing of the application and did not appear today.
Affidavit filed in support of GRSA’s position
The applicant relied on an affidavit of Mr Kordick, a legal practitioner employed as General Manager, Risk and Compliance of the GRSA. The affidavit deposes to the circumstances of receipt of the digital files and steps taken following the receipt of the footage, which I summarise as follows.
On Tuesday 23 August 2022, the GRSA received an email through its administrative account from an unknown sender, containing a link to the digital files, accompanied by a message that live baiting is happening in the greyhound trainer circles in South Australia. The email referred to proof in the link and identified an address.
The video footage contained in the digital files was recorded using a video camera installed in a stack of tyres located in an outdoor training lure set-up called a bullring, which Mr Kordick described as “a structure designed to … simulate a moving race lure by which a greyhound can be trained to pursue”.
The video footage shows two men using live rabbits as lures. The video included vision of the first man securing a live rabbit on the lure system, while the second man held two or three greyhounds. The lure, with the rabbit attached, then moved around on the rail and, as it came past the second man, he let go of the greyhounds, allowing them to pursue and maul the rabbit. The noise, including the sounds of the rabbit, can be heard captured on the footage. The video footage then showed this process repeated with what appears to be two or three different greyhounds. Some brief conversation can be heard.
After viewing the files, Mr Kordick took a series of steps, including notifying the RSPCA. A search warrant was obtained and a search of the identified address was conducted by the GRSA, RSPCA and SAPOL officers.
The GRSA is the regulator of greyhound racing in South Australia. Both national and State rules govern greyhound racing in South Australia. The Greyhound Australasia Rules are adopted by the GRSA and all controlling bodies in Australia and the GRSA also has local rules that apply in South Australia. The Greyhound Australasia Rules and the local rules are together referred to as the Rules of Racing.
The GRSA prosecutes breaches of the Rules of Racing by registered participants in South Australia. The Rules of Racing prescribe, as a serious offence, an offence of using or attempting to use in connection with greyhound training or greyhound racing, any live animal, whether as bait, quarry or lure. The penalty prescribed by the rule is disqualification for life and potentially a fine.
The Rules of Racing contain procedures for investigating breaches of the Rules of Racing. Some breaches are heard by the Integrity Hearings Panel which operates as a private disciplinary tribunal. Local rules contain procedures for the conduct of proceedings and provide certain rights of appeal which are to the Racing Appeals Tribunal.
A Steward’s Inquiry was commenced by the GRSA following receipt of the video footage. The interested parties, who are registered with the GRSA, face charges under the Rules of Racing and they are currently suspended.
The GRSA wishes to use the digital files as evidence in the inquiries conducted by the Integrity Hearing Panel and any subsequent appeal to the Racing Appeal Tribunal.
Mr Kordick’s affidavit deposes to public condemnation of live baiting in 2015 and 2016, which followed revelations of that practice by some participants in New South Wales, and which threatened the continuation of greyhound racing in that state. He referred to live baiting as probably the most heinous breach of the Rules of Racing.
Surveillance Devices Act provisions
Section 10(1) of the SDA disallows a person from knowingly using, communicating or publishing information or material derived from the use of a listening device or optical surveillance device in circumstances where the device was used in the public interest, unless in accordance with an order of a judge made under the SDA.
Section 11 of the SDA allows a person to apply to a judge for an order authorising the use, communication or publication of information derived from the use of a listening device or an optical surveillance device.
An “optical surveillance device” is defined in s 3 of the SDA and includes “a device capable of being used to observe or record visually (whether for still or moving pictures) a person, place or activity”. A “listening device” is defined in the same section as “a device capable of being used to listen to or record a private conversation or words spoken to or by any person in a private conversation (whether or not the device is also capable of operating as some other kind of surveillance device)”.
A “private conversation” is defined in s 3 of the SDA as “a conversation carried on in circumstances that may be reasonably taken to indicate that at least 1 party to the conversation desires it to be heard only by the other parties to the conversation”. A “private activity” is defined in the same section as “an activity carried on by only 1 person in circumstances that may reasonably be taken to indicate that the person does not desire it to be observed by another person”.
Surveillance device?
The first question for my consideration is whether the creation of the digital files by the video recording falls within the definition of a listening device or an optical surveillance device. I am satisfied in the circumstances in which the video footage was taken and the digital files were recorded that the video footage was recorded by a surveillance device that constituted both an optical surveillance device and a listening device within the meaning of the SDA.
That being the case, it would constitute an offence for the GRSA to use, communicate or publish information in, or material derived from, use of the digital files, even if the device was used in the public interest, unless in accordance with a court order.
Relevant considerations
Senior counsel for the GRSA submitted there are two matters for my consideration: was the surveillance device used in the public interest when it was used to record the video footage; and if yes to that question, should the Court make the orders sought or different orders authorising the use and communication of information and material derived from the use of the surveillance device.
I turn to consider those matters.
Public interest?
The SDA does not define what is in the public interest.
The GRSA submits that, in the most general terms, the public interest concerns interests that are common to the public at large or a significant portion of the public.
The term “public interest” has a broad expression without a fixed meaning. In Bare v Independent Broad-Based Anti-Corruption Commission,[1] Tate J observed that the High Court has recognised there is an inherent breadth to the concept of public interest when used in legislation. Justice Tate referred to the decision of O’Sullivan v Farrer[2] (“O’Sullivan”) and stated that a public interest test calls for a discretionary evaluative judgment to be made undefined by factual matters and limited only by the scope and purpose of the relevant legislation. In O’Sullivan, Mason CJ, Brennan, Dawson and Gaudron JJ said that where legislation confers a power, a general discretion confined only by the scope and purposes of the legislation will ordinarily be implied if the context provides no positive indication of the considerations by reference to which a decision is to be made.
[1] (2015) 48 VR 129.
[2] (1989) 168 CLR 210.
I also refer to Osland v Secretary of the Department of Justice[3] in which Hayne J noted that questions about what is in the public interest will ordinarily require consideration of a number of competing features about the public interest.
[3] (2008) 234 CLR 275 at [137].
The GRSA relied on the Attorney-General’s Second Reading Speech delivered on 10 September 2015 on the Bill that later became the SDA. The Attorney-General referred to a previous iteration of the Bill which met opposition due to concerns that the SDA would prohibit the use of devices to document activities relating to agricultural or farming practices despite this being contrary to the clear public interest exception contemplated in the Bill. Senior counsel for the GRSA submitted it is implicit that the public interest exception was intended to allow the use of devices to record activities involving public cruelty and that is inherent in the Attorney-General’s reference.
Senior counsel submitted that the provisions of the SDA seek to balance the public interest in persons maintaining private activities and conversations against the public interest in the recording and use of recordings of such matters. He submitted the requirement for a judicial determination of the public interest is intended to ensure the public interest in protecting privacy does not prevail when the public interest in recording of private activities and conversations and the use thereof is greater.
Senior counsel for the GRSA submitted the covert recording of persons engaged in acts of animal cruelty is in the public interest so that such evidence may be provided to relevant regulatory authorities for action. The need to record covertly is required given the nature of the activities is such that they will self-evidently be conducted out of the public eye.
Senior counsel also submits it is possible to infer the taking of the video footage in this case was done because there was a suspicion live baiting was occurring and for the purposes of providing the footage to the regulator to take disciplinary action against those persons. The GRSA submits it is in the public interest that evidence of serious acts of animal cruelty be brought to the regulator’s attention.
In Farm Transparency International Ltd & Anor v State of New South Wales,[4] Kiefel CJ and Keane J stated it cannot be doubted that cruelty to animals is an important issue for society and legislatures. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[5] Kirby J referred to concerns about animal welfare being legitimate matters of public debate across the nation. His Honour observed that “many advances in animal welfare have occurred only because of public debate and political pressure from special interest groups. The activities of such groups have sometimes pricked the conscience of human beings.”
[4] (2022) 403 ALR 1 at [4].
[5] (2001) 208 CLR 199 at [217].
The GRSA accepts the privacy of the interested parties was invaded by the use of a surveillance device. However, counsel points to the fact the activities were conducted outdoors in the open on a rural property and in circumstances in which the interested parties ought to have known the Rules of Racing prohibited the activities. He also noted that the files were limited to the activity in question.
I have viewed the digital files. I accept the activities recorded in them are described accurately by the GRSA. I accept the use of live animals as bait or lure is prohibited by the Rules of Racing and considered an unacceptable practice. I accept the GRSA’s submissions including that the prevention, reduction and discouragement of cruelty to animals is in the public interest and those goals will be promoted by authorising the GRSA to use the video footage in disciplinary proceedings against persons conducting acts of animal cruelty contrary to the Rules of Racing. I also accept the submission that the public interest goals were promoted by the creation of the video footage and there is a potential for personal and general deterrence following from authorisation of use.
I am satisfied that the surveillance device was used in the public interest. I am satisfied the digital files comprise information derived from the use of a listening device or optical surveillance device where the device was used in the public interest. Accordingly, the prerequisites for the exercise of a discretion under the SDA have been met.
Exercise of discretion
I accept that the discretion whether or not to make an order under the SDA to enable the use, communication and publication of information or material derived from the use of a surveillance device is a discretion to be exercised judicially and in accordance with the purposes for which the power to make such order is conferred.
I accept the GRSA’s submission that it is an appropriate use of the digital files, and consistent with the public interest, for the files to be used as proposed to enable all relevant evidence to be used in the disciplinary proceedings against the interested parties, including to give them procedural fairness, and in any subsequent appeal which may be brought without the need for a further application. I note that the orders sought are limited to the use in disciplinary proceedings and the potential for appeal.
I therefore allow the application.
After hearing from senior counsel for the GRSA I made the following orders pursuant to ss 10(1) and 11 of the SDA:
1. Greyhound Racing SA Limited (“GRSA”) and its officers, employees and agents may use two digital files, which GRSA was first provided with access to on 23^rd August 2022, and which are alleged to show activities on or about 6^th July 2022 at 73 Bethesda Road, Lewiston, South Australia (“the Digital Files”) and information relating to them for the purposes of, and as evidence in, the GRSA Integrity Hearing Panel (“the IHP”) Inquiries being conducted into alleged breaches of the Rules of Racing by Mr Connor Murray, Mr Jackson Murray and Mr Troy Murray (“the Inquiries”).
2. The members of the IHP that hear the Inquiries may use the Digital Files and information relating to them for the purposes of the Inquiries, including by referring to the Digital files and information relating to them in its reasons for decision.
3. GRSA and its officers, employees and agents may use the Digital Files and information relating to them for the purposes of, and as evidence in, any appeal to the Racing Appeals Tribunal (“the RAT”) from a decision made by the IHP at the Inquiries.
4. In any appeal to the RAT from a decision made by the IHP at the Inquiries, the members, Registrar and employees or agents of the RAT may use the Digital Files and information relating to them for purposes related to the appeal, including by referring to the Digital files and information relating to them in the RAT’s reasons for decision.
5.GRSA may provide copies of the Digital Files and communicate information relating to them, to Mr Connor Murray, Mr Jackson Murray and Mr Connor Murray and their legal representatives for purposes related to the Inquiries and any related appeal to the RAT, and Mr Connor Murray, Mr Jackson Murray and Mr Connor Murray and their legal representatives may use the Digital Files and information relating to them, for purposes related to the Inquiries and any related appeal to the RAT.

[2023] SASC 63

24 April 2023