High Court Upholds Validity of Surveillance Devices Legislation Against Freedom of Political Communication Challenge
Anthony Gray
2.09.2022
The highly emotive subject of animal cruelty, and the legality of attempts to bring its possible existence to the attention of the public, was considered in a recent High Court decision. Anti-cruelty activists challenged the validity of a surveillance law that could be applied to their activities. The High Court dismissed the activists’ challenge, but in so doing, significant differences on key issues were apparent. The case also demonstrates that for a constitutional challenge to legislation based on the implied freedom of political communication, the requirements of proportionality, as applied by the current High Court, can present very high, if not virtually insurmountable, hurdles to overcome.
In the recent case of Farm Transparency International Ltd & Anor and State of New South Wales (Farm Transparency), the High Court dismissed a constitutional challenge to provisions of the Surveillance Devices Act 2007 (NSW). The plaintiff, in possession of animal cruelty footage, challenged the validity of ss 11 and 12, arguing that the provisions impermissibly burdened the implied freedom of political communication. The former prohibited a person publishing or communicating to another a private conversation, record of an activity, report of a private conversation or conduct of an activity that came to the person’s knowledge through use of a ‘device’ (being a listening device, optimal surveillance device or tracking device) contrary to that Part of the legislation. Section 12 prohibited possession of a record of a private conversation or conduct of activity where the possessor knew it had been obtained by use of a device contrary to that Part of the legislation. There were various other sections within that Part, but the Court confined its decision to circumstances potentially engaging s 8, which prohibited a person from knowingly installing, use or maintaining an optical surveillance device on or within premises etc to record or observe an activity, where such use involved entry without owner consent. Thus, the decision related to the validity of ss 11 and 12, only in the context of potential breach of s 8. The decision was thus narrower than the plaintiff’s challenge.
As is well-known, members of the High Court differ as to how they determine whether or not a challenged measure inappropriately infringes the implied freedom of political communication. This is best explained by referring to the test in Lange v Australian Broadcasting Corporation [1997], where a unanimous High Court settled upon a two-stage test to the following effect (including a slight rewording in a later case): (1) whether the law effectively burdens freedom of political communication in operation or effect, and (2) if so, whether the law is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with representative and responsible government: [567].Two current members of the Court, Gageler and Gordon JJ, still apply the two-stage test.
However, a majority of the Court (Kiefel CJ Keane Edelman Steward and Gleeson JJ) apply a third stage, that of proportionality: LibertyWorks Inc v Commonwealth of Australia [2021]. Proportionality involves consideration of whether the law is suitable, necessary and adequate in its balance (McCloy v New South Wales [2015]). In other words, these judges consider the two stages identified in Lange, but add a third stage. Thus, all judges consider whether the measure burdens the implied freedom of political communication and, if it does, whether it is designed to meet a legitimate purpose compatible with our system of representative government.
Differences between the two approaches should not be exaggerated – they will often (not always) lead to the same conclusion. Most matters to which the majority refer in their three-stage proportionality enquiry are typically also considered in the minority's application of the reasonably appropriate and adapted test.
In this case, all members of the Court agreed the challenged provisions burdened the implied freedom of political communication in that they could potentially prohibit publication or possession of material regarding possible animal cruelty. It was common ground that animal cruelty, and the effectiveness of existing laws regulating it, was a political topic. The factual circumstances in Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] clearly demonstrate this. In considering the extent of the ‘burden’, the Court took into account existing legal restrictions on this kind of communication, including laws of trespass, privacy laws and actions for breach of confidence: [225]-[240] (Edelman J). A complicating factor here was that the Australian law regarding the last action remains unsettled. All members of the Court agreed the relevant legislation served a legitimate purpose – potentially protecting property and/or privacy rights of individuals whose conversations/activities might be recorded without their knowledge by those on private property without the owner’s permission.
Majority View
The majority concluded the challenged provisions ‘passed’ the proportionality analysis – they were suitable, necessary and adequate in their balance. They were suitable as being rationally connected to the legitimate purposes of the legislation.
The majority considered whether the measures were ‘necessary’. Past cases had applied this concept narrowly, considering whether there were alternative measures available to achieve the same purpose that were ‘obvious and compelling’ and had a less restrictive effect on the freedom. In this context, the plaintiff raised examples of surveillance legislation in other Australian jurisdictions which provide for a ‘public interest’ exception to general prohibitions on covert surveillance. The majority rejected the argument these were ‘obvious and compelling’ alternatives with a less restrictive effect on the freedom, applying the concept very narrowly. According to Kiefel CJ and Keane J, the alternative measure ‘must achieve the same legislative purpose to the same degree’: [46], to like effect Edelman J: [258]. They rejected the argument the other legislation considered met this requirement – they were framed differently and focussed on private activity, while the New South Wales legislation was focussed on property rights: [52] (Kiefel CJ and Keane J). The New South Wales provisions were also confined to knowingly unlawful conduct, while the compared provisions were not: [50]. Edelman J noted the other provisions did not achieve privacy protection to the same degree as the impugned measures: [258]. Kiefel CJ and Keane J opined that showing that public interest required dissemination of information about a private activity should ‘not be assumed to be an easy task’: [51]. Moreover, Kiefel CJ and Keane J disagreed with imposition of a ‘public interest’ exception to prohibitions in the New South Wales legislation, stating that it would be inconsistent with the purpose of the legislation to discourage unlawful behaviour, because it would likely effectively encourage citizens to engage in unlawful surveillance: [53]. Edelman J agreed, noting that there was no mention of privacy in the objects clause of the compared legislation, and the Queensland version was limited to listening devices: [259]-[260]. His Honour concluded ‘ultimately the alternative models do little more than illustrate the existence of a range of different legislative choices available in a representative democracy to implement different, though perhaps related, policy goals’: [261]. Kiefel CJ and Keane J concluded the legislation was adequate in its balance – it protected privacy interests that the law had long regarded as important, and burdened freedom of political communication slightly, confined to communications by those knowing the unlawful means by which the relevant material had been obtained.
Edelman J noted in determining the ‘reasonable necessity’ of the law, it was relevant to consider its depth and breadth. Where its impact on the implied freedom was not deep and/or not broad, it was more likely ‘reasonably necessary’. Here the challenged measures neither deeply nor broadly impacted the implied freedom. His Honour noted an earlier High Court decision (Kadir v The Queen [2020]) reflecting on the undesirability of accepting evidence derived from deliberate unlawful behaviour, lest the law be seen to approve or countenance vigilantism: [259].
Edelman J concluded ‘in a representative democracy, the best protection for non-human animals against cruelty is not the implied freedom of political communication. … the best protection for non-human animals must come from parliament’: [267].
Steward J agreed with Kiefel CJ and Keane JJ, and Edelman J. He indicated justification for ss 11 and 12 was also based on existing legislative powers available to permit inspectors to attend premises to investigate allegations of animal cruelty. While these exist, as noted by Edelman J, in none of the cases where the plaintiff had provided recordings to the police, or the RSPCA was there a successful prosecution. It is not clear why. Steward J made his comments ‘on the assumption that the implied freedom of political communication may fetter the legislative power of a state’: [270]. If this wording is intended to suggest doubt attends the matter, the implied freedom has been held applicable to state politicians and state legislation since the 1990s (see, e.g., Stephens v West Australian Newspapers Ltd [1994] and Levy v Victoria [1997]). Indeed, almost all occasions where the implied freedom has been considered in the past 30 years have concerned state legislation. With respect, there is no doubt as to the applicability of the implied freedom to state laws. Nor is there any doubt as to the very existence of the freedom. In this sense, there was no repeat of his Honour’s (respectfully) perplexing suggestion in Liberty Works Inc v Commonwealth [2021] that ‘it is arguable that the implied freedom does not exist’ (at 546).
Minority View
The remaining Justices concluded the challenged provisions impermissibly interfered with the implied freedom of political communication and had to be read down. The extent to which this was required differed. Gageler J (with whom Gleeson J agreed) favoured a more substantial reading down; for Gordon J, a narrower reading down sufficed.
Gageler J had the most expansive view of the scope of the limitation on legislative power represented by the implied freedom. He noted the implied freedom curtailed legislative design and options, ruling out legitimate ends which governments might otherwise pursue. Noticeably, his Honour re-articulated the importance of the freedom in preserving the ability of individuals to hear a range of political views: [74]. He noted it was a partial response to the risk that, at any one time, holders of majority political views may seek to silence contrary views: [76]. His Honour also acknowledged a salient point from the unanimous decision in Lange – that the common law was subject to the implied freedom and required to yield to it. In Lange it was the law of defamation; in this case, it would be the law of trespass and the law of privacy (such as it is in Australia). Gageler J succinctly summarised the delicate balance between the legislature and judiciary in this context, observing that legislatures had the power to balance a range of considerations in determining the scope of laws which might impact freedom of political communication, and this power should be accorded respect. However, as part of the checks and balances inherent in our system of democratic governance, courts had a supervisory role over this power, and it was legitimate for the courts to determine boundaries of this legislative choice: [78].
Alone of the Justices, Gageler J noted visual imagery was a particularly valuable mode of communication – it conveyed information quicker than the written word. The information thereby conveyed was true. The challenged provisions curtailed the ability of individuals to communicate about political issues via this mechanism. His Honour also remarked on the crude nature of the provisions – they did not distinguish according to the gravity of the information obtained through such means, or whether the information garnered was high-value or low-value political information: [81]. Applying the two-stage Lange approach, his Honour concluded the challenged measures were not reasonably appropriate and adapted to their legitimate purpose of protecting property and privacy interests:
the prohibitions are too blunt; their price is too high; the cost they impose on the communication and receipt of information about matters of political and governmental concern is more than can be warranted for every activity which might be shown by a visual record to have occurred on private property: [82].
Gageler J also considered other regimes, noting they all contained public interest exemptions. For his Honour, this comparison led him to conclude that the challenged measures were disproportionate to the achievement of their legitimate objectives and inadequate in their balance and that they should be read down so as not to apply to the publication or possession of a visual record that is a political communication: [97]. Gleeson J agreed with Gageler J: [272]-[273].
Gordon J agreed that the provisions should be read down because they impermissibly interfered with the implied freedom, but that this reading down should be limited to the extent that the provisions did not place an unjustified burden on political communication [123]. This was only applicable to innocent third parties, not those engaged in the trespass committed to obtain the information/recording.
Gordon J shared the view of the majority regarding provisions in other jurisdictions. Her Honour did not believe they were ‘obvious and compelling’ alternatives [182] yet commented on the fact it was not a particularly useful matter to consider, in terms of constitutionality: [182]. The other provisions had different starting points, different purposes, approaches and structures. Gordon J distinguished how the law applied to those involved in trespass and those who were not. Regarding the former, her Honour concluded the challenged laws were valid. However, regarding the latter, this could include innocent third-party publishers. Gordon J concluded application of the law to such individuals was not reasonably appropriate and adapted to advancing legitimate government interests. The burden on freedom of political communication was therefore potentially significant and could not be justified.
On the matter of reading down, Edelman J disagreed that the provisions could be read down ‘to exclude third parties who were not complicit in the trespass’ (Gordon J) … or unlawful private activities that concern government or political matters’ (Gageler J). For his Honour, both options ‘would not be judicial interpretation but judicial vandalism’: [216].
Reflections
1. Support for the Implied Freedom
Support for the implied freedom seems variable. The most full-throated defence and evident understanding of its importance is from Gageler J. His Honour strongly articulates the nature and scope of the freedom and notes the ability of visual imagery to powerfully contribute to political debate. As a result, his Honour disfavours broad legislative provisions that demonstrate no sensitivity towards their potential to impact the constitutional freedom. At the other extreme, Steward J has openly questioned whether the implied freedom exists, and if it does, has expressed doubts over its scope. Other Justices support the implied freedom, but the way in which they apply existing principles to ascertain whether it has been infringed can make it difficult to successfully utilise them.
2. Uncertainty Regarding Need to Demonstrate ‘Obvious and Compelling’ Alternatives Less Invasive of the Freedom
It was the High Court that determined that a proportionality analysis should be applied to test the validity of measures challenged as contrary to the implied freedom, and that this analysis included a ‘necessity’ test. The Court also determined that in applying this test, it was relevant to consider whether there were obvious and compelling alternatives less invasive of the freedom. Thus, one can hardly blame the challenger in this case from referring to alternative regimes in other jurisdictions, to seek to meet the test the Court itself crafted.
Yet the majority gave these comparisons short shrift, pointing out the differences in purpose, objects clauses, scope, and terminology of the provisions across the different regimes. With respect, this will typically always be the case where different legislatures have legislated on a particular topic. Uniformity in legislation is rare. Legislation will often have been crafted at different times in different contexts. Particularly in the areas of surveillance, technology has often moved quickly, such that legislators might view the scope of needed legislation much differently today than even a few years ago. As such, it becomes very difficult to apply the ‘obvious and compelling’ test (that the Court itself crafted), when its members insist that the only legislation that can be compared must ‘achieve the same purpose to the same degree’.
With respect, this might set the bar impossibly high. At a higher level of abstraction, the Justices might have noted, as Gageler J did, that legislation elsewhere included a public interest exemption, and that this reflected an ‘obvious and compelling alternative’ less invasive of the freedom. The majority sidestepped this by articulating differences between the challenged legislation and that in other jurisdictions. Arguably, this placed too much focus on the minutiae of the legislative provisions, not broad principle. A Court so focussed will almost always find some differences in the legislation being compared. This approach makes it easy to conclude there are no ‘obvious and compelling’ alternatives, leading to the validity of the provision. Edelman J dismissed the relevance of the evidence of alternative models: ‘ultimately, the alternative models do little more than illustrate the existence of a range of different legislative choices available in a representative democracy’. Yes, they do. But the parties have been led to bring these alternative models to meet the Court-imposed requirement that there be evidence of ‘fresh and compelling’ alternatives. The High Court cannot reasonably expect that alternative models presented will have the same purposes and achieve them to the same degree as the challenged provision. This sets an impossible requirement, given the vagaries of legislatures and drafting.
3. The ‘Best Protection’ for Animals
Edelman J concluded the ‘best protection’ for animals against cruelty was not the implied freedom of political communication, but had to come from parliament: [267]. With respect, it is not clear how an assessment of how a wrong is ‘best’ protected is relevant to questions of the constitutionality of parliament’s measures. It is not clear which part of the Lange test or proportionality analysis relates to questions of which of the arms of government is ‘best’ placed to achieve particular objectives. Just as questions of the wisdom or efficacy of particular measures are matters for parliament, and not relevant to questions of constitutionality, so are assertions about which arm of government is ‘best’ placed to do a particular thing.
4. Concern for Privacy
One reason the majority gave for upholding the legislation was it protected important interests of privacy; this was relevant in the balancing of various interests involved, and given substantial weighting. However, the Court’s preparedness to give substantial weighting to privacy interests in this context may be contrasted with the fact that when (previous) decisions of the High Court have considered strengthening ‘patchy’ legal protections of privacy through a separate tort of 'privacy', it has provided merely lukewarm support for its development, and reform remains languishing at the launch pad. With this in mind, the Court’s concern with privacy interests can seem piecemeal.
Conclusions
The case was difficult. At a philosophical level, it involved questions of whether the ends justify the means, as well as whether potentially unlawful behaviour is ethically justifiable if it seeks to bring an egregious wrong, animal cruelty, to the public’s attention. A utilitarian argument could be made for the plaintiffs’ actions, that the end (exposing animal cruelty and abuse) justifies means (trespassing). Often utilitarians conflict with libertarians, yet somewhat unusually, a libertarian argument could also be made for the plaintiffs, based on constitutional freedom to disseminate political information, related to a democratic argument about the need to facilitate and nurture political communication. Parliaments (as representatives of the people) have a right to make legislative choices, after weighing up often competing considerations. Their choices are entitled to respect and deference, given their democratic legitimacy.
However, their choices are not unbounded. The constitutional freedom of political communication is well-established. Its existence is a given. A more serious threat to it is more subtle, that the requirements to satisfy its application (court-imposed) become difficult, if not impossible, to meet. The Farm Transparency decision demonstrates this. The Court, having previously insisted there be evidence of ‘obvious and compelling’ alternatives less invasive of the freedom, should not be surprised when parties lead evidence of other regimes, or that these regimes differ in substantive respects from the one being challenged. This does not mean, and should not mean, the challenge should fail. Rather, either the ‘obvious and compelling’ test needs to be ‘dialled down’ substantially in terms of what the court requires to meet it, or potentially, its place in the proportionality analysis re-considered. As currently implemented, whether by accident or design, it places an almost insurmountable burden in the path of the one challenging legislation based on the implied freedom, at the risk of rendering the freedom redundant. This must not occur.
As Gageler J said, the Court’s role in the context of the implied freedom is supervisory, permitting the legislature leeway as to how to meet its policy objectives, but ensuring that in their pursuit, constitutional imperatives are not sacrificed. Respectfully, it is not a matter of which of the legislature or the judiciary is ‘best’ to deal with an issue. Rather, each has an important constitutional role, as part of the checks and balances within our system of government. It is not judicial vandalism to read legislation down to make it conform to the Constitution, and it is an orthodox position that the common law must yield to constitutional requirements. Just as it applies to the tort of defamation in Lange, it applies to the tort of trespass in this case. In this light, the position of Gageler J (with whom Gleeson J agreed) and the position of Gordon J ought to be preferred.
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Professor Anthony Gray researches and teaches public law and is Associate Head - Research in the School of Law and Justice, University of Southern Queensland.
Suggested citation: Anthony Gray, ‘High Court Upholds Validity of Surveillance Devices Legislation Against Freedom of Political Communication Challenge’ on AUSPUBLAW (2 September 2022) <https://www.auspublaw.org/blog/2022/09/high-court-upholds-validity-of-surveillance-devices-legislation-against-freedom-of-political-communication-challenge>