The High Court's Opaque Decision in Farm Transparency International Ltd v State of New South Wales

Farm Transparency International Ltd is a company and not-for-profit charity that advocates for the rights of non-human animals by raising public awareness about modern farming and slaughtering practices. Their objective is to end commercialised non-human animal abuse and exploitation including through changes to law, policy and practice. A key tactic employed by Farm Transparency is to publish photos, videos and audio-video recordings of agricultural practices on their website. However, the materials published by Farm Transparency are frequently obtained by persons associated with the organisation entering agricultural premises and installing recording devices without the consent of the owner or occupier. This has prompted concerns about the rights of farmers and, following the example of the United States, the enactment in various Australian jurisdictions of so-called “ag-gag” legislation that seeks to protect the privacy of farmers and deter trespassers. In 'Farm Transparency International Ltd v New South Wales' (Farm Transparency), the High Court heard a challenge to provisions of the 'Surveillance Devices Act 2007' (NSW) (the Act) on the basis that they contravene the implied freedom of political communication. This is the first case in which the constitutionality of ag-gag legislation has been considered in Australia. The Court determined the validity of section 11 (which prohibits a person from publishing or communicating a record of an activity that has come to the person’s knowledge as a result of the use of a device in contravention of the Act) and section 12 (which prohibits a person from possessing a record of an activity knowing that it has been obtained by the use of a device in contravention of the Act). The Court confined its decision to circumstances where sections 11 and 12 are engaged by section 8, which prohibits a person from knowingly installing, using or maintaining an optical surveillance device on a premises or vehicle without the express or implied consent of the owner or occupier.