Sawa Pty Ltd v Australian Broadcasting Corporation
[2017] WASC 349
•1 DECEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SAWA PTY LTD -v- AUSTRALIAN BROADCASTING CORPORATION [2017] WASC 349
CORAM: CHANEY J
HEARD: 20 NOVEMBER 2017
DELIVERED : 1 DECEMBER 2017
FILE NO/S: CIV 2939 of 2017
BETWEEN: SAWA PTY LTD
Plaintiff
AND
AUSTRALIAN BROADCASTING CORPORATION
Defendant
Catchwords:
Surveillance devices - Permission to publish video recordings of private activity - Recordings received in evidence in prosecution - Recordings played in open court - Whether widespread broadcast should be made to further public interest
Legislation:
Surveillance Devices Act 1998 (WA), s 6, s 27, s 31
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr J D MacLaurin
Defendant: Mr B H Taylor
Solicitors:
Plaintiff: Salerno Law
Defendant: Mills Oakley Lawyers
Case(s) referred to in judgment(s):
Bunning v Cross (1978) 141 CLR 54
Channel Seven Perth Pty Ltd v S (A Company) [2007] WASCA 122; (2007) 34 WAR 325
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
SAWA Pty Ltd v Swift [2016] WASC 331
CHANEY J: The defendant applies for an order pursuant to s 31 of the Surveillance Devices Act 1998 (WA) to publish and broadcast certain video recordings on condition that the publication of the footage by the defendant does not identify the persons depicted in the footage, either by name or visual representation of their faces. The video recordings have been received in evidence in proceedings in the Magistrates Court of Western Australia notwithstanding that it was accepted that they had been recorded in contravention of the Surveillance Devices Act.
Background to the application
In about July 2014, the plaintiff, SAWA, and its director Mr Nicolaas Botha were each charged by an inspector of the Royal Society for the Prevention of Cruelty to Animals (WA) (RSPCA) with eight alleged animal cruelty offences pursuant to the Animal Welfare Act 2002 (WA). The prosecution relied heavily upon video footage recorded by a Mr Hendrick Fowler who, at the time the video footage was recorded, was an employee of SAWA at the Moola Bulla Station in the north‑west of the State. Moola Bulla Station was one of several cattle stations owned and operated by SAWA. At the trial, objection was taken to the tender of the video footage on the basis that the video recording of the activity was a contravention of the Surveillance Devices Act. SAWA's counsel submitted that the tender of the video recordings should be rejected in the exercise of the court's discretion to exclude illegally obtained evidence having regard to the principles identified in Bunning v Cross.[1] The magistrate ruled that the balance of the competing interests favoured reception of the video recordings into evidence.[2]
[1] Bunning v Cross (1978) 141 CLR 54.
[2] Affidavit of Emma Salerno 20 November 2017, annexure ES1D [35] ‑ [43].
After several days of hearing, SAWA was acquitted of all but one of the charges. SAWA and Mr Botha successfully appealed the single conviction to the Supreme Court. The conviction was overturned and a judgment of acquittal entered.[3]
[3] SAWA Pty Ltd v Swift [2016] WASC 331.
That appeal was heard on 5 October 2016 and reasons for decision allowing the appeal were delivered on 14 October 2016. On 13 October 2016, an employee of the defendant lodged an application with the Magistrates Court of Western Australia pursuant to s 33 of the Magistrates Court Act 2004 (WA) to obtain a copy of the video recordings tendered in the proceedings before the magistrate. In an email attaching the appropriate form of request to obtain a copy of a court record, the employee said 'we intend to use this exhibit for the compilation of a fair and accurate report on the matters of the proceedings and for the purpose of investigative journalism'.[4] On 1 November 2016, the employee received an email from the Magistrates Court registry indicating that the magistrate had approved the application. That approval was not a permission for the purposes of s 31 of the Surveillance Devices Act under which only a judge can make an order and the order must be made on an application in accordance with s 32.
[4] Affidavit of Hugh Bennett 16 November 2017 [6], annexure HB1.
On or about 8 November 2017, Ms Salerno the solicitor who had acted for SAWA and Mr Botha in the Magistrates Court proceedings, and had appeared as counsel in those proceedings, became aware that the respondent had obtained a copy of the footage and was planning to run a story on SAWA and the proceedings. She made contact with a journalist employed by the respondent, Mr James Thompson, on 9 November 2017. As a result of that conversation Ms Salerno understood the journalist to confirm that he was in possession of the video recordings and planned to publish a story which would involve reporting about Mr Botha, SAWA and their operations. There followed an exchange of correspondence in which Ms Salerno sought an undertaking from the respondent not to use or publish the video recordings in any form failing which an injunction would be sought. The respondent sought clarification of the basis of the proposed injunction application, but declined to provide any undertakings. As a result, these proceedings were commenced by SAWA seeking an injunction restraining use or publication of the video recordings by the respondent. That prompted an application by the respondent for an order pursuant to s 31 of the Surveillance Devices Act that it could publish the video recordings. The parties agreed that the respondent's application should be dealt with first, and that the application for the injunction would be deferred pending the outcome of the respondent's application. It is the respondent's application that now falls for determination.
Surveillance Devices Act provisions
The Surveillance Devices Act is an act to regulate the use, amongst other things, of optical surveillance devices in respect of private activity. It is concerned with recordings of private conversations by listening device, or activities or conversations by optical surveillance devices. An optical surveillance device is any instrument, apparatus, equipment or other device capable of being used to record visually or observe a private activity.[5] A private activity relevantly means an activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves. It is not in issue in these proceedings that the matters depicted in the video recording are private activities for the purposes of the Surveillance Devices Act.
[5] Surveillance Devices Act 1998 (WA) s 3.
Section 6 precludes a person from using an optical surveillance device to record visually or observe a private activity whether or not that person is or is not a party to the private activity. There are certain exceptions to that prohibition, including the use of an optical surveillance device in accordance with pt 5 of the Act. Part 5 of the Act is concerned with the use of surveillance devices in the public interest. Section 27 falls within div 2 of pt 5. It provides that:
A person who is a party to a private activity may use an optical surveillance device to record visually the private activity if a principal party to the private activity consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the optical surveillance device is in the public interest.
Section 31(1) provides:
A judge may make an order that a person may publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person’s knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device under Division 2 or 3, if the judge is satisfied, upon application being made in accordance with section 32, that the publication or communication should be made to protect or further the public interest.
Relevant for the present case is the capacity under s 31 for the court to make an order that a person may publish a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of an optical surveillance device under div 2. It is necessary to address the threshold question as to whether or not the video recordings are within the category of recordings in respect of which an order may be made under s 31.
Status of the video recordings
In the proceedings before the magistrate, the question of exclusion of the video recordings from evidence appears to have proceeded on an acceptance that the recordings were made in breach of s 6 of the Act.[6] In these proceedings, the respondent did not accept that the making of the recording did contravene the Act, because it fell within one of the exceptions to s 6 being the use of an optical surveillance device in accordance with pt 5. It contended that Mr Fowler was a principal party to the private activity recorded by use of the optical surveillance device, that he consented to the recording in that capacity and that his use of that device was in the public interest, being the public interest in questions of animal welfare, and the prosecution of possible offences relating to animal cruelty.
[6] Affidavit of Emma Salerno 20 November 2017, annexure ES1D [35]. The prosecutor also appeared to have accepted the illegality of the recording: annexure ES1C page 89 and 93.
Section 27 enables recording by a 'person who is a party to a private activity'. 'Party' in relation to a private activity is defined as a person who takes part in the activity or a person who, with the express or implied consent of any person taking part in the activity, observes or records the activity. There is no suggestion that Mr Fowler had the express or implied consent of any other person to record the events in question. The only consent upon which he could rely is his own consent if he is a 'principal party' to the activity. 'Principal party' is defined to be, in relation to a private activity, a person who takes part in the activity.[7]
[7] Surveillance Devices Act s 3.
The respondent contended that the activity being recorded was the activity of being present at the location. I do not accept that submission. Clearly the activity recorded in the video recordings is the activity of dehorning cattle in all but one of the video recordings, and euthanizing an animal in the other recording. I am, however, satisfied that Mr Fowler was a person who took part in that activity. That satisfaction is derived from Mr Fowler's evidence before the magistrate. He gave evidence that, whilst he was employed as a helicopter pilot, he also 'did some work in the yards'. That work he described as 'chasing the cattle towards the crush. Tagging their ears and cutting their ears'.[8] Mr Fowler was asked whether he took part in any of the dehorning and he acknowledged that he did.[9]
[8] Affidavit of Hugh Bennett 17 November 2017, page 28, annexure HB15, ts 244.
[9] Affidavit of Hugh Bennett 17 November 2017, page 28, annexure HB15, ts 245.
It is also apparent from viewing the video recordings themselves, that Mr Fowler was closely involved in the operations the subject of the videos. As he acknowledged, he was filming the events covertly. The events were depicted at very close range, and the recording device was not held in a steady position, but rather was obviously moving erratically. The manner of the depiction suggests that Mr Fowler was participating in the activity as he sought to film the events which were occurring.
I am satisfied, therefore, that Mr Fowler was a principal party to the activity concerned and thus was permitted by s 27 of the Surveillance Devices Act to record the events visually if there were reasonable grounds for believing that the use of the optical surveillance device was in the public interest.
It is apparent that Mr Fowler's motivation for recording the events was a concern as to animal welfare, and with a view to reporting his concerns to an appropriate authority. It was within that context that he made the video recordings available to the RSPCA.
Notwithstanding that the prosecution was ultimately unsuccessful, I consider that there were reasonable grounds for believing that Mr Fowler's use of the optical surveillance device was in the public interest. The relevant aspect of the public interest in this context is the public interest in the free and effective reporting of concerns as to the mistreatment of animals to an appropriate authority.
It follows that the video recordings have come to the respondent's knowledge as a direct or indirect result of the use of an optical surveillance device under div 2 of pt 5 of the Act and that the video recordings are therefore a record of a private activity of the type that is permissible under s 27 and in respect of which orders may be made under s 31 of the Act.
The discretion under s 31
The scope and purpose of the power under s 31 was considered by the Court of Appeal in Channel Seven Perth Pty Ltd v S (A Company).[10] That case establishes that the decision as to whether to make an order is a discretionary decision of the narrow type explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[11] where Gleeson CJ, Gaudron and Hayne JJ said in a joint judgment:
'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment. (footnotes omitted)
[10] Channel Seven Perth Pty Ltd v S (A Company) [2007] WASCA 122; (2007) 34 WAR 325.
[11] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 [19].
Thus, although the judge has latitude with respect to the decision as to whether publication should be made to protect or further the public interest, once satisfied as to that matter, no separate discretion as to whether or not to make the order arises.[12] Pullin and Buss JJA agreed that there is no separate discretion arising from the words 'may make an order'.
[12] Channel Seven Perth Pty Ltd v S(A Company) [22].
McLure JA also observed that the Act makes it an offence for a person to knowingly publish a record of a private activity that has come to that person's knowledge as a direct or indirect result of the use of covert devices, but does not prohibit the publication of the content of private activities generally.[13]
[13] Channel Seven Perth Pty Ltd v S(A Company) [23].
Thus, the question to be addressed is whether publication should be made to protect or further the public interest. If so, then an order under s 31 must be made.
Furtherance of the public interest
The grounds of the defendant's application were set out in the notice of motion as follows:
(a)The publication of the material in respect of which leave is sought would further and protect the public interest in:
(i)free communication, and the promotion of public debate, about the merits and desirability of proposed amendments to the Animal Welfare Act 2002 (WA) presently before the Parliament of Western Australia;
(ii)free communication, and the promotion of public debate, about the administration and effectiveness of the law as it relates to the treatment and welfare of animals in the State of Western Australia;
(iii)the prevention of inhumane treatment of animals in the State of Western Australia and elsewhere;
(iv)receiving fair and accurate reports of proceedings conducted in open court, including the evidence adduced therein;
(v)the maintenance of the principle of 'open justice' and the integrity of the judicial system in the State of Western Australia.
(b)The publication of the material in respect of which leave is sought should be permitted, on the basis that:
(i)In the circumstances, the public interests set out at (a) significantly outweigh any competing public interests;
(ii)The material has been exhibited in open court and in the absence of any order restraining its publication;
(iii)The substance of the evidence before the court is best and immediately conveyed by the exhibition of the recordings themselves and cannot be otherwise adequately conveyed in serving the public interest;
(iv)The material has been legitimately released to the Defendants in accordance with section 33 of the Magistrates Court Act 2004 (WA);
(v)The contents of the material have been reported in other public forums as part of fair and accurate reports of proceedings.
As the grounds suggest, the defendant's contention that publication of the video recordings should be made to protect or further the public interest is based in part on the proposition that the publication would facilitate and inform public understanding of the issues arising in relation to debate currently occurring in the Parliament of Western Australia in relation to amendments to the Animal Welfare Act proposed in the Animal Welfare Amendment Bill 2017. It observes, correctly, that a live issue in the proceedings before the magistrate was the application of defences under s 19(1) and s 25 of the Animal Welfare Act and the application of the Model Code of Practice for the Welfare of Animals: Cattle (Cattle Welfare Code). The successful appeal in relation to the charge in respect of which SAWA and Mr Botha were convicted turned on the failure of the magistrate to deal in his reasons with the applicability of the defence under s 25 of the Animal Welfare Act and whether the procedures the subject of the charge were done in accordance with the Cattle Welfare Code. In the second reading speech introducing the Animal Welfare Amendment Bill 2017, the Minister responsible advised the Parliament that the changes proposed to the Animal Welfare Act would enable the implementation of national animal welfare standards and guidelines for livestock which all Australian jurisdictions had agreed to implement. That would enable greater capacity to regulate matters relating to animal welfare in Western Australia. The bill would introduce a new regulation making power and impose responsibility for compliance with standards on the person in charge of an animal, and to modify existing defences to a charge of cruelty to allow new standards to be implemented, and to provide for additional prescribed defences. The bill was also intended to avoid confusion in relation to the application of defences based on codes of practice.
Mr Hugh Bennett, a solicitor in the employ of the defendant, in his affidavit of 17 November 2017 said that the defendant wished to publish the video recordings in the context of news and current affairs stories which:
(a)will discuss the differences between the relevant law as enforced at the time of the charges against the plaintiff and as contemplated by the proposed amendments to the Animal Welfare Act presently before the Parliament of Western Australia;
(b)will discuss the standards concerning the dehorning of cattle presently applicable in Western Australia, how those differ from alternative standards enforced elsewhere and whether the Western Australian standards are adequate;
(c)will discuss the relative merits and desirability of amendments to the law proposed by the Animal Welfare Amendment Bill 2017; and
(d)in the context of the above matter, will fairly and accurately report on the criminal proceedings against the plaintiff in the magistrates court of Western Australia and subsequent appeal, including on the evidence which was presented to the court and on the basis of which the plaintiff was ultimately acquitted.
The plaintiff submits that an order should not be made because of the breadth of the use to which the defendant seeks to put the video recordings. It submits, correctly, that the applicant has not explained precisely in which way the footage will be deployed in proposed broadcasts 'in the context of news and current affairs stories'. It submits that it is unclear why the publication of the footage is necessary in order to report upon the matters described by Mr Bennett.
Mr Botha, in his affidavit of 20 November 2017, said that the location at which the video recordings were taken were yards at Moola Bulla Station which are about 50 km from the main highway along a private driveway located on private property. The yards are not accessible to the public or in view of members of the public. Signs along the private driveway state that the land is private property and trespassers will be prosecuted. He said that employees working on the Station are given a set of rules, including a rule that there are to be no cameras in or near places of work. That rule exists because of the dangers posed in working in cattle yards, which require full concentration so that the use of cameras would pose a risk to occupational health and safety. In addition, Mr Botha said that the rule also exists because of his awareness that standard practices conducted in the cattle industry are confronting to the general public and if viewed are capable of bringing him and his company into disrepute if publicly broadcast. He expressed concern at the possible consequences of publication of the footage given the potential for extensive republication via the internet and social media which would result in the footage being disseminated in an uncontrolled way.
The plaintiff also relies on the fact that, following the proceedings in the Magistrates Court, there were a number of media reports of those proceedings (including by the defendant) which were able to describe the events depicted in the video recording, and the evidence in relation to different aspects of those recordings, without the broadcast of the footage itself. It contends, therefore, that the publication of the covert surveillance video recording is not necessary to enable the free and open debate as to animal welfare issues, nor to provide a fair and accurate report of the proceedings.
The question for determination under s 31 is whether publication should be made to protect or further the public interest. It is not sufficient that the publication merely relates to a matter of public interest, but rather requires a value judgment to be made as to whether, having regard to all relevant matters, publication should be made. That involves a process of weighing the competing public interest which underlies the constrictions on the use of covert surveillance devices through the Surveillance Devices Act with the protection or furtherance of the public interest said to be served by publication.
In Channel Seven Perth Pty Ltd v S (A Company), McLure JA identified the scope of the publication as a relevant factor. Her Honour noted that the appellant proposed, in that case, to publish the covertly obtained private information to the community at large. Her Honour noted that it may be the case that Channel Seven Perth could more effectively stimulate audience interest in the issues by using the covertly obtained images and audio, but she did not regard that as contributing in any meaningful way to the public interest. Her Honour concluded that if the matters relied upon in that case satisfied the statutory criteria in s 31, there could be widespread use by the media of covertly obtained private information, an outcome not consistent with the language and purpose of the Act.[14]
[14] Channel Seven Perth Pty Ltd v S (A Company) [40].
Having considered the competing positions of the parties, and having viewed the video recordings, I am not satisfied that publication of the video recordings should be made to protect or further the public interest. That is because I am satisfied that the purpose for which the defendant seeks to utilise the video recordings, including the decision to fairly and accurately describe the proceedings before the magistrate, can be adequately achieved by discussion of the evidence adduced in the Magistrates Court, as was done in the various publications at or shortly after the time the proceedings were dealt with, and that display of the video recordings is not necessary for that purpose. I am also mindful that the privacy which the Surveillance Devices Act is designed to protect, and which the plaintiff and its principal Mr Botha, are anxious to protect (whatever one might think about his motivation for that anxiety), would be damaged in an uncontrolled way by publication of the video recordings to the world at large. Although the defendant's grounds of application presume some limitation on the use of the publication to the identified areas of public interest, the order which it seeks does not limit publication to any particular purpose but is in terms that would permit broadcast of the recordings for any purpose. I do not consider that an order conditioned upon use only for the purposes identified in the grounds, or in the affidavit of Mr Bennett, is appropriate. That is because the breadth of the purposes described is so wide as to make such a condition very difficult, if not impossible, to enforce.
It is the case that the footage has been received in evidence and played in open court. It was however subject to objection on the basis of what was accepted to be its illegality. The considerations which the magistrate was required to take into account in determining whether to exercise a discretion to exclude the evidence are different from the considerations to be taken into account under s 31 of the Surveillance Devices Act. The fact that the defendant came into possession of the recording through a legitimate process also cannot be determinative of an application under s 31.
In the circumstances, I am not prepared to make the orders sought by the defendant, and its application should be dismissed.
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