Animal rights activists have lost a landmark high court case against New South Wales laws criminalising the use of secretly recorded vision from farms and abattoirs, which they said prevented their attempts to blow the whistle on animal cruelty and abuse.
The state, through its Surveillance Devices Act, makes it a criminal offence to use or possess footage or audio that was obtained using a listening device or hidden camera, and gives no public interest exemptions for doing so.
The Farm Transparency Project, an Australian animal advocacy group, launched a case last year arguing the laws were an unfair burden on freedom of political communication. The laws have previously been used to pursue activists on criminal charges and have prevented media outlets from using footage depicting alleged cruelty or abuse in abattoirs and knackeries across the state.
In the months leading up to filing of the high court case, the laws stymied attempts by the Guardian to show secretly recorded footage of ex-racehorses being sent for slaughter at NSW pet food factories, a clear breach of industry rules.
The laws, through sections 11 and 12 of the act, prohibit the communication or publication of a “record or report” of activities that were obtained as a “direct or indirect result” of the use of an unlawful optical surveillance device. They also prohibit the possession of records obtained using such devices.
The high court on Wednesday morning ruled that the laws do not pose too great a burden on speech. The laws were upheld and the Farm Transparency Project ordered to pay costs.
“The high court, by majority, held that [sections 11 and 12 of the Surveillance Devices] Act did not impermissibly burden the implied freedom in their application to, respectively, the communication or publication by a person of a record or report, or 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 or report being obtained exclusively by breach of [section eight of the surveillance devices act],” the court said in a summary of its judgment.
It ruled the laws had a legitimate purpose to protect privacy.
The court also said the schemes of other states and territories were “not obvious and compelling alternatives”, because they did not “pursue the same purpose and were broader in application”.
“Sections 11 and 12 achieved an adequate balance between the benefit they sought to achieve and the adverse effect on the implied freedom,” the court’s summary said.
The case split the court. Three high court justices dissented from the majority ruling.
Justice James Edelman, one four judges who found against Farm Transparency Australia, noted that still images from some recordings presented to the court as examples involved the “considerable suffering of non-human animals”.
“They reveal shocking cruelty to non-human animals,” he wrote.
“They may very well have been unlawful as well as immoral. But even apart from the lack of submissions about the basis for any illegality, the special case does not assert that any of the recorded activities had been found to be unlawful.”
He said that the “special case was presented on the basis that the activities, albeit undeniably cruel, were not established to be unlawful”. That meant the court was left to consider whether freedom of political communication could be contravened where someone was committing trespass in order to record and publish something that was not illegal.
During the hearing of the case in February, the activists also pointed to the greyhound live baiting scandal as an example of a public interest served by the publication of such footage. The vision of that practice, published by ABC’s Four Corners, helped to spark a huge backlash and reforms to the sector after a public inquiry.
Chris Delforce, a Farm Transparency Project activist, said the ruling would not stop his organisation from conducting its important work.
“Regrettably, the case avoids deciding whether the [secret recording] law itself is invalid, and decides only that a person who has unlawfully trespassed to obtain footage of animal cruelty can be forbidden from publishing that footage,” he said in a statement after the decision. “We were found to have been such persons.
He said the strong implication from the ruling was that a media outlet would have won if it had challenged the case.
“We call on a media outlet to challenge this [secret recording] law in the high court.”
In its written submissions to the high court, the Farm Transparency Project urged the court to consider the consequences of the law for publishers, and not the way that activists were perceived publicly.
“It is about the law that is challenged,” it said.
“Whether the plaintiffs are viewed as admirable activists, or vulgar vigilantes, or something in between, is irrelevant. If anything, the case is about the publishers whose freedom to publish is curtailed.”
The court was told that other states had similar laws, including Victoria, South Australia, Western Australia, and the Northern Territory. Those laws, however, used carve-outs to allow the use of such footage in a way accommodates the implied right to freedom of political communication.