Farm Transparency International Ltd v New South Wales

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

FARM TRANSPARENCY INTERNATIONAL
LTD & ANOR  PLAINTIFFS

AND

STATE OF NEW SOUTH WALES  DEFENDANT

Farm Transparency International Ltd v New South Wales

[2022] HCA 23

Date of Hearing: 10 & 11 February 2022
Date of Judgment: 10 August 2022

S83/2021

ORDER

Questions 2 and 4 of the questions of law stated for the opinion of the Full Court in the amended special case filed on 6 October 2021 be amended, and the questions stated in the amended special case (as further amended) be answered as follows:

1.Does section 11 of the Surveillance Devices Act 2007 (NSW) impermissibly burden the implied freedom of political communication?

Answer, "Section 11 does not impermissibly burden the implied freedom of political communication in its application to the communication or publication by a person of a record or report 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 s 8 of the Surveillance Devices Act. It is unnecessary to determine whether s 11 burdens the implied freedom of political communication in other applications".

2.If "yes" to Question 1, is s 11 of the Surveillance Devices Act 2007 (NSW) able to be partially disapplied in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?

Answer, "If s 11 were invalid in some of its operations, it could be partially disapplied to the extent of that invalidity. Otherwise, this question is unnecessary to answer".

3.Does section 12 of the Surveillance Devices Act 2007 (NSW) impermissibly burden the implied freedom of political communication?

Answer, "Section 12 does not impermissibly burden the implied freedom of political communication in its application to 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 being obtained exclusively by breach of s 8 of the Surveillance Devices Act. It is unnecessary to determine whether s 12 burdens the implied freedom of political communication in other applications".

4.If "yes" to Question 3, is s 12 of the Surveillance Devices Act 2007 (NSW) able to be partially disapplied in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?

Answer, "If s 12 were invalid in some of its operations, it could be partially disapplied to the extent of that invalidity. Otherwise, this question is unnecessary to answer".

5.Who should pay costs?

Answer, "The plaintiffs should pay the defendant's costs".

Representation

P J Dunning QC with A Aleksov for the plaintiffs (instructed by Bleyer Lawyers Pty Ltd)

M G Sexton SC, Solicitor-General for the State of New South Wales, with M W R Adams for the defendant (instructed by Crown Solicitor's Office (NSW))

S P Donaghue QC, Solicitor-General of the Commonwealth, with T M Wood and J R Wang for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

J A Thomson SC, Solicitor-General for the State of Western Australia, with G M Mullins for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

G A Thompson QC, Solicitor-General of the State of Queensland, with F J Nagorcka and K J E Blore for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

M J Wait SC, Solicitor-General for the State of South Australia, with K M Scott for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Farm Transparency International Ltd v New South Wales

Constitutional law (Cth) – Implied freedom of communication about governmental or political matters – Where s 8 of Surveillance Devices Act 2007 (NSW) ("SD Act") relevantly prohibited knowing installation, use or maintenance of optical surveillance device on or within premises to record visually or observe carrying on of activity if installation, use or maintenance of device involved trespass – Where ss 11 and 12 of SD Act prohibited, respectively, publication or communication of record or report, and possession of record, obtained in contravention of, relevantly, s 8 of SD Act – Whether ss 11 and 12 burdened implied freedom – Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance.

Words and phrases – "adequate in its balance", "breach of confidence", "burden", "complicit in trespass", "implied freedom of political communication", "incremental burden", "lawful activity", "legitimate purpose", "mens rea", "optical surveillance device", "partially disapplied", "privacy", "public interest", "reasonably necessary", "structured proportionality", "suitable", "surveillance devices", "trespass".

Surveillance Devices Act 2007 (NSW), ss 8, 11, 12.

1. KIEFEL CJ AND KEANE J.   The first plaintiff, Farm Transparency International Ltd, is a company and a not‑for‑profit charity which seeks to raise public awareness of animal cruelty and to increase an understanding of the importance of the prevention and alleviation of animal suffering. It seeks to improve the treatment of animals including through changes to the law, policy, practice and custom. In particular, the first plaintiff has agitated and advocated for political and legal changes to animal agricultural practices and animal welfare standards with the objective of ending modern farming and slaughtering practices. In doing so it has engaged in the publication of photographs, videos and audio‑visual recordings of animal agricultural practices in Australia, including in New South Wales.

2. The second plaintiff, Christopher James Delforce, is a director of the first plaintiff and an activist for animal welfare and animal rights. The second plaintiff has participated in the entry onto the property of others to install, use or maintain an optical surveillance device to record the carrying out of an activity on the premises without the consent of the owner or occupier of the premises, which is to say the recordings were obtained through an act of trespass. The second plaintiff's affidavit, annexed to the Amended Special Case ("the ASC"), suggests that the premises were associated with the farming or slaughter of animals and that the recordings obtained were published by the plaintiffs.

3. At issue in the ASC is the validity of ss 11 and 12 of the Surveillance Devices Act 2007 (NSW) ("the SD Act"), which, subject to certain conditions and exceptions, respectively prohibit the publication of a record of the kind mentioned above, and the possession of such record, where it has been obtained in contravention of provisions of Pt 2 of the SD Act, which in turn would include the circumstances referred to above concerning the second plaintiff's conduct.

4. It is the plaintiffs' case that ss 11 and 12 effect a significant burden on the constitutionally guaranteed freedom[1] of persons to make known, to the public and to government, practices which involve cruelty to animals. It cannot be doubted that cruelty to animals is an important issue for society and for legislatures such as the New South Wales Parliament, and that persons and groups such as the plaintiffs have sought to achieve changes to laws directed to that issue. At the same time, there has been discussion about the rights of farmers, especially in relation to trespass on farms. The history of policy discussions and legislative actions in New South Wales[2] bears out the attention which has been directed to these topics. They are but one aspect of the broader implied freedom of communication on matters of politics and government.

   [1]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

   [2]See, eg, Farm Trespass: Action Plan for National Implementation of the NSW Farm Incursion Policy 2014 (2016); Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW); Rural Crime Legislation Amendment Act 2017 (NSW); New South Wales, Department of Primary Industries, Animal Welfare Action Plan (2018); Right to Farm Act 2019 (NSW); New South Wales, Legislative Council, Select Committee on Animal Cruelty Laws in New South Wales, Inquiry into animal cruelty laws in New South Wales: Terms of Reference (2020); New South Wales, Legislative Council, Select Committee on Animal Cruelty Laws in New South Wales, Animal cruelty laws in New South Wales, Report No 1 (2020); New South Wales, Response to related recommendations arising out of the 2018 Parliamentary Inquiry into Landowner Protection from Unauthorised Filming or Surveillance (2020).

5. The legislative purpose of the relevant provisions of the SD Act, which ss 11 and 12 further, is the protection of privacy. They pursue that purpose largely by preventing and deterring conduct which amounts to a trespass on the property of others. This is a legislative choice made by the New South Wales Parliament. The role of this Court is to determine whether, in the pursuit of that purpose, the freedom of political communication, understood more generally, has been impermissibly burdened or restricted. Such a conclusion might be reached where the means chosen to achieve what is, in law, a legitimate purpose, lacks proportionality. That engages the legal analysis required by this Court's decisions in McCloy v New South Wales and subsequent cases[3].

   [3]McCloy v New South Wales (2015) 257 CLR 178; Brown v Tasmania (2017) 261 CLR 328; Clubb v Edwards (2019) 267 CLR 171; Comcare v Banerji (2019) 267 CLR 373; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490; 391 ALR 188.

   The SD Act provisions

6. The SD Act came into force in New South Wales on 1 August 2008, following the repeal of the Listening Devices Act 1984 (NSW). Its purpose is stated by s 2A to be:

   "Objects of Act

   The objects of this Act are –

   (a)to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations, and

   (b)to enable law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions, and

   (c)to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices."

7. The focus here is on s 2A(c) and the "privacy of individuals".

8. Part 2 of the SD Act, headed "Regulation of installation, use and maintenance of surveillance devices", creates a number of offences. Sections 7 to 10 concern the use of surveillance devices to record conversations, activities or information concerning a person. Sections 11 and 12 concern the publication and possession of records so obtained.

9. Section 7(1) of the SD Act prohibits the knowing installation, use or maintenance of a listening device to overhear, record, monitor or listen to a private conversation. It is subject to certain exceptions. A contravention of the section is an offence subject to a penalty.

10. Section 8(1) of the SD Act is most obviously relevant to the facts of the ASC. Section 8(1) provides that:

    "A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves –

    (a)entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or

    (b)interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.

    Maximum penalty – 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case)."

11. An "optical surveillance device" is defined by s 4(1) to mean "any device capable of being used to record visually or observe an activity". Sub-section (2) of s 8 provides that sub-s (1) does not apply in certain circumstances not presently relevant.

12. Sections 9 and 10 contain prohibitions on the installation, use and maintenance of tracking devices and data surveillance devices respectively.

13. No challenge is brought by the plaintiffs to the validity of sections 7 to 10. The plaintiffs accept that they are valid laws. The sections the subject of challenge, ss 11 and 12, are in these terms:

    "11     Prohibition on communication or publication of private conversations or recordings of activities

    (1)A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person's knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.

    Maximum penalty – 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

    (2)Subsection (1) does not apply to the following –

    (a)if the communication or publication is made –

    (i)to a party to the private conversation or activity, or

    (ii)with the consent, express or implied, of all the principal parties to the private conversation or activity, or

    (iii)for the purpose of investigating or prosecuting an offence against this section, or

    (iv)in the course of proceedings for an offence against this Act or the regulations,

    (b)if the communication or publication is no more than is reasonably necessary in connection with an imminent threat of –

    (i)serious violence to persons or of substantial damage to property, or

    (ii)commission of a serious narcotics offence.

    (3)A person who obtains knowledge of a private conversation or activity in a manner that does not involve a contravention of a provision of this Part is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened this Part.

    12Possession of record of private conversation or activity

    (1)A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part.

    Maximum penalty – 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

    (2)Subsection (1) does not apply where the record is in the possession of the person –

    (a)in connection with proceedings for an offence against this Act or the regulations, or

    (b)with the consent, express or implied, of all of the principal parties to the private conversation or persons who took part in the activity, or

    (c)as a consequence of a communication or publication of that record to that person in circumstances that do not constitute a contravention of this Part."

    Questions in the Amended Special Case

14. It is not in dispute that the communication to others of an activity carried out on premises of the kind mentioned above may amount to a political communication which is the subject of the constitutionally protected implied freedom[4]. The freedom operates as a restriction upon legislative power[5] and is the basis of the plaintiffs' challenge to the constitutional validity of ss 11 and 12 of the SD Act.

    [4]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566-567.

    [5]Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [36]; McCloy v New South Wales (2015) 257 CLR 178 at 202-203 [30]; Brown v Tasmania (2017) 261 CLR 328 at 360 [90], 374 [150], 398 [237], 407 [258], 410 [262], 430 [313], 466 [433], 475 [465], 476 [469], 503 [559].

15. The plaintiffs and the defendant have agreed that the following questions be referred to a full bench of this Court for determination:

    1.Does section 11 of the SD Act impermissibly burden the implied freedom of political communication?

    2.If "yes" to Question 1, is section 11 of the SD Act severable in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?

    3.Does section 12 of the SD Act impermissibly burden the implied freedom of political communication?

    4.If "yes" to Question 3, is section 12 of the SD Act severable in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?

    5.Who should pay costs?

    The limits of the Amended Special Case

16. The facts stated in the ASC are that the first plaintiff has engaged in conduct that purportedly contravenes ss 11 and 12 of the SD Act and may in the future engage in such conduct. Likewise, the second plaintiff has in the past and may in the future engage in conduct that purportedly contravenes ss 11 and 12.

17. The conduct engaged in or to be engaged in is not specified in the ASC. Only the second plaintiff identifies conduct by him as having purportedly contravened s 8 of the SD Act. He may therefore be taken to have entered onto premises without the consent of the owner or occupier to knowingly install, use or maintain an optical surveillance device to record the carrying on of an activity on the premises. The ASC does not contain any facts which point to either of the plaintiffs' conduct as having involved s 7, s 9 or s 10.

18. In a passage in an affidavit relied on by the plaintiffs, it is said that if the first plaintiff receives information in the future, "whether video footage or audio recordings or otherwise", which depicts animal cruelty, it would "wish to publish that information". This takes the matter no further for the plaintiffs. It is not sufficient to establish a state of facts relevant to the engagement of s 7 of the SD Act. It is not suggested that the first plaintiff has ever published private conversations recorded by listening devices contrary to s 7.

19. The plaintiffs' submissions proceed upon the basis that they are entitled to challenge ss 11 and 12 in all their operations respecting ss 7 to 10. Such an entitlement does not follow from the concession by the defendant that the plaintiffs have standing. The existence of standing does not mean that the plaintiffs can "roam at large" over the statutory provisions[6].

    [6]Knight v Victoria (2017) 261 CLR 306 at 324-325 [33]; Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 at 847 [59]; 393 ALR 551 at 566.

20. As recently restated in Mineralogy Pty Ltd v Western Australia[7], this Court takes a "cautious and restrained" approach to answering questions concerning the constitutional validity of provisions. The parties to a special case have no entitlement to expect an answer on a question of law stated in that special case unless the Full Court can be satisfied that "there exists a state of facts which makes it necessary to decide [the] question in order to do justice in the given case and to determine the rights of the parties"[8].

    [7](2021) 95 ALJR 832 at 846 [57]; 393 ALR 551 at 565.

    [8]Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 at 846 [56]; 393 ALR 551 at 565, quoting Lambert v Weichelt (1954) 28 ALJ 282 at 283. See also Duncan v New South Wales (2015) 255 CLR 388 at 410 [52]; Knight v Victoria (2017) 261 CLR 306 at 324 [32]; Zhang v Commissioner of the Australian Federal Police (2021) 95 ALJR 432 at 437 [21]; 389 ALR 363 at 368; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490 at 511 [90]; 391 ALR 188 at 210.

21. The plaintiffs are entitled to advance only those grounds of challenge which bear on the validity of ss 11 and 12 in their application to the plaintiffs[9]. At the most, it may be said that the conduct of the second plaintiff is of a kind to which s 8 refers. The plaintiffs are then properly confined to challenging the validity of ss 11 and 12 as engaged by s 8. The relevant parts of ss 11 and 12 that are engaged are those which prohibit the publication and possession of a record of the carrying on of an activity obtained in contravention of s 8.

    [9]Knight v Victoria (2017) 261 CLR 306 at 325 [33].

    The mental elements of s 11

22. A difference may be observed in the statement of the offences under ss 11 and 12 concerning the element of knowledge of a contravention of Pt 2. In s 12 it is an element of the offence, which must therefore be proved, that the possessor of the record of the carrying on of an activity knows that the record has been obtained by the use of an optical surveillance device in contravention of Pt 2. Section 11 speaks only of a person's knowledge as an awareness of a record of an activity which is brought about by the use of a surveillance device in contravention of Pt 2, rather than an awareness of that contravention.

23. In their original submissions the plaintiffs drew attention to the absence of any express reference in s 11 to the person publishing the record having knowledge that it was obtained in contravention of Pt 2. This led them to submit that the offence was one of strict liability which arose whenever a provision of Pt 2 was contravened, without more. On this understanding the operation of s 11 would be broad. This is not a position which they continue to maintain in the face of authority.

24. It is well settled that mens rea, or a knowledge of the wrongfulness of an act, is an essential element in every statutory offence unless it is expressly or by necessary implication excluded by the statute[10]. The law makes two presumptions which are implied as elements in a statutory offence. The first is that the person does the physical act defined in the offence voluntarily and with the intention of doing the act. The second, which is here relevant, relates to the external elements of a statutory offence, being the circumstances which attend the doing of the physical act. The law implies as an element of the offence that at the time when the person does the physical act involved, they know the circumstance which makes the doing of that act an offence or do not believe honestly and on reasonable grounds that the circumstances are such as to make the doing of the act innocent[11].

    [10]Sherras v De Rutzen [1895] 1 QB 918 at 921, cited in He Kaw Teh v The Queen (1985) 157 CLR 523 at 528 per Gibbs CJ, 549 per Wilson J, 566 per Brennan J.

    [11]He Kaw Teh v The Queen (1985) 157 CLR 523 at 570-571, 582 per Brennan J.

25. Since there are no express words or any implications to prevent the presumption applying to s 11, it is taken to be an element of the offence there stated that the person publishing the record must have known that s 8 has been contravened in making the record, or was reckless as to that fact. No offence is committed unless a person is shown to have that state of mind. This will be relevant in determining the extent to which the SD Act operates to burden the implied freedom.

    A burden on the implied freedom of political communication

26. The free flow of communication on matters of politics and government is implied in the Constitution as necessary to the maintenance of the system of government for which the Constitution provides[12]. It is of such importance that a statutory provision which has the effect of burdening it, by restricting or limiting such communication, must be justified[13]. It is sufficient for a law to require justification that it effects any burden on the freedom. The extent of that burden assumes importance in the later process of justification.

    [12]Unions NSW v New South Wales (2013) 252 CLR 530 at 551 [27]; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490 at 504 [44]; 391 ALR 188 at 199.

    [13]McCloy v New South Wales (2015) 257 CLR 178 at 213 [68]; Brown v Tasmania (2017) 261 CLR 328 at 369 [127]; Comcare v Banerji (2019) 267 CLR 373 at 399 [29]; LibertyWorks Incv The Commonwealth (2021) 95 ALJR 490 at 504 [45]; 391 ALR 188 at 199.

27. The question whether the freedom is burdened has regard to the legal and practical operation of the law[14]. The question is not how it may operate in specific cases, which are but illustrations of its operation, but how the statutory provision affects the freedom more generally[15].

    [14]Brown v Tasmania (2017) 261 CLR 328 at 358 [84], 367 [118], 431 [316], 433-434 [326], 479-481 [484]-[488].

    [15]Brown v Tasmania (2017) 261 CLR 328 at 360 [90].

28. The defendant properly concedes that, in their operation, ss 11 and 12 may burden the implied freedom. Communications about activities carried out on premises may be political in nature and the provisions prohibit those communications, or the possession of information about those activities for the purposes of those communications. Such communications may include discussions of animal welfare, a legitimate matter of governmental and political concern[16] and a matter in respect of which persons may seek to influence government. That is not to say that ss 11 and 12, as engaged by s 8, are directed to the content of what is published. They are not. They are relevantly directed more generally to records of activities which are obtained by unlawful means using optical surveillance devices.

    [16]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 286-287 [217] per Kirby J.

29. The process of justification commences with the identification of the statutory purpose. That purpose must be compatible with the system of representative government for the provision to be valid[17]. A justification for a burden will only be sufficient if it is shown that the statutory provision is proportionate to the achievement of its purpose[18]. Since McCloy v New South Wales[19], including more recently in LibertyWorks Inc v The Commonwealth[20], proportionality has been assessed by reference to whether the impugned provision is suitable, necessary and adequate in its balance[21].

    [17]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561-562, 567; McCloy v New South Wales (2015) 257 CLR 178 at 203 [31]; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490 at 504 [45]; 391 ALR 188 at 199-200.

    [18]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562; LibertyWorksInc v The Commonwealth (2021) 95 ALJR 490 at 504 [46]; 391 ALR 188 at 200.

    [19](2015) 257 CLR 178.

    [20](2021) 95 ALJR 490 at 504 [46] per Kiefel CJ, Keane and Gleeson JJ; 391 ALR 188 at 200.

    [21]Brown v Tasmania (2017) 261 CLR 328 at 368 [123] per Kiefel CJ, Bell and Keane JJ, 416-417 [278] per Nettle J; Clubb v Edwards (2019) 267 CLR 171 at 200-202 [70]-[74] per Kiefel CJ, Bell and Keane JJ, 264-265 [266] per Nettle J, 311 [408], 330-331 [463] per Edelman J; Comcare v Banerji (2019) 267 CLR 373 at 400 [32] per Kiefel CJ, Bell, Keane and Nettle JJ.

    Legitimacy of purpose

30. The plaintiffs accept that the purposes stated in s 2A are legitimate. The purposes stated in s 2A of the SD Act extend beyond those relevant to law enforcement agencies, which may use surveillance devices in criminal investigations and to gather evidence for prosecutions. Section 2A(c) states an object of the SD Act to be to ensure that the privacy of individuals is not unnecessarily impinged upon and it says that it seeks to achieve that purpose by providing strict requirements around the installation, use and maintenance of surveillance devices. Sections 7 to 10 may be understood to be those strict requirements.

31. Section 8 prohibits the installation, use or maintenance of an optical surveillance device to record the carrying on of an activity on premises (or in a vehicle) where the installation, use or maintenance of the device involves entry onto premises constituting a trespass. Although privacy may generally be understood to be concerned with personal autonomy[22], it may also take its meaning from statutory context. Section 8 may be understood to protect the interest in privacy which arises out of the enjoyment of private property[23]. It adopts the policy of the common law and furthers the protections afforded by the law of trespass to prohibit optical surveillance being conducted on private property. It seeks to prevent interference with "the possession of property and the privacy and security of its occupier"[24]. So understood, the purpose of s 8 is to protect privacy and the incidents of the possession of property as relevant to it. It does so by making conduct enabled by trespass an offence and thereby discouraging it.

    [22]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 256 [125] per Gummow and Hayne JJ.

    [23]TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 344-345 [52].

    [24]Plenty v Dillon (1991) 171 CLR 635 at 647.

32. The publication of an optical surveillance record of activities conducted on premises might further erode the privacy interests of those having possession of the property. Sections 11 and 12 are intended to limit the damage to those interests caused by the publication of material obtained in contravention of s 8. Section 11, to which s 12 is largely preparatory, may be understood to further those purposes. Its prohibitions on publication are intended not only to deter the publication of a record unlawfully obtained but also to deter a contravention of s 8 and lessen the likelihood of it occurring. It may be seen to have that purpose because it seeks to prevent the use of the product of the initial unlawful act.

33. Sections 11 and 12 have proper purposes as laws. They do not impede the functioning of representative government and what that entails[25] and are therefore legitimate in the sense relevant to the implied freedom.

    [25]McCloy v New South Wales (2015) 257 CLR 178 at 203 [31]; Clubbv Edwards (2019) 267 CLR 171 at 194 [44].

34. The plaintiffs submit that a purpose of ss 11 and 12 is to effect a "gag" on discussions about the agricultural practices with which the plaintiffs are concerned. It is correct to observe, as is stated in the ASC, that the expression "farm trespass" has been adopted by the New South Wales Government in recent years to describe a range of conduct that includes persons entering farming properties without consent for the purposes of advocacy and protest. As the ASC records, Select Committees of the New South Wales Parliament have considered the effects of trespass and unauthorised surveillance devices on farmers and farming operations; have considered issues around the effectiveness of animal cruelty laws; and have made recommendations concerning legislative changes. None of these reports are relevant to the SD Act as enacted and its purpose. The plaintiffs' submissions essentially fail to distinguish between an effect of an impugned provision and statutory purpose[26]. It may be that a consequence of ss 11 and 12 is that some reporting of agricultural practices is prevented, at least in cases where the publisher knows of the antecedent trespassory conduct, but that effect cannot be equated with their statutory purpose.

    [26]McCloy v New South Wales (2015) 257 CLR 178 at 205 [40]; Brown v Tasmania (2017) 261 CLR 328 at 362 [100].

    Suitability

35. The requirement of suitability is not in issue in the present case. There is no dispute that the measures provided for in ss 11 and 12 are rationally connected to the purposes which they seek to achieve[27].

    [27]See Comcare v Banerji (2019) 267 CLR 373 at 400 [33].

    The burden and its extent

36. It has been mentioned earlier in these reasons that the extent to which ss 11 and 12 of the SD Act burden the freedom assumes importance in the process of justifying the law. The extent of the burden is relevant in considering the alternative measures which may be employed to achieve the same statutory purpose, and which may be less burdensome in effect. It is also relevant in considering adequacy of balance, where consideration is given to the extent of the burden and the importance of the statutory purpose.

37. The extent of the burden effected by ss 11 and 12 is not to be assessed by reference to the operation and effect of those provisions alone. The burden effected by the prohibitions in ss 11 and 12 must be assessed by reference to the restraints which the law – understood as the common law, equity, and statute law – already imposes upon a person's ability to publish records of activities obtained surreptitiously and by conduct which amounts to trespass. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly restrict[28]. It is that burden which is to be justified.

    [28]Levy v Victoria (1997) 189 CLR 579 at 625-626 per McHugh J; Brown v Tasmania (2017) 261 CLR 328 at 365 [109] per Kiefel CJ, Bell and Keane JJ, 383 [181], 385-386 [188] per Gageler J, 408-409 [259] per Nettle J, 443 [357], 455 [393], 460 [411], 462 [420] per Gordon J, 502-503 [557]-[558], 507 [566] per Edelman J.

38. Consideration may first be given to what rights the common law and equity recognise, and which may be enforced to prevent publication of information obtained in the manner mentioned. The question of what causes of action might be applied to invasions of privacy was discussed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[29]. At issue in that case was whether an interlocutory injunction could issue with respect to the publication by the appellant of film footage it had received showing the method by which possums were killed at a licensed abattoir, in circumstances where the footage had been obtained using hidden video cameras installed by unidentified trespassers.

    [29](2001) 208 CLR 199.

39. As Gummow and Hayne JJ observed[30], the common law of Australia has not yet recognised a general right to privacy. The recognised causes of action to which their Honours referred[31] as possibly having application in such circumstances included those for injurious falsehood, defamation (where truth was not a complete defence) and confidential information which concerned the personal affairs and private life of a person.

    [30]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 250 [110]; see also Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502; 376 ALR 575.

    [31]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 255 [123].

40. So far as concerns the law of breach of confidence, Gleeson CJ observed[32] that equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. Equity, acting on the principle of good faith, will restrain the publication of information which may be regarded as confidential and which was improperly or surreptitiously obtained. A photographic image or a film depicting activities that are private in nature, which were recorded by the methods employed in that case, would be protected[33]. A difficulty for the respondent in that case was that the activities secretly observed and filmed were not private in nature. His Honour observed that "a person who enters without permission is a trespasser; but that does not mean that every activity observed by the trespasser is private"[34].

    [32]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 224 [34].

    [33]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 224 [34], 225 [39].

    [34]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 227 [43].

41. Prior to the decision in Lenah Game Meats, in Lincoln Hunt Australia Pty Ltd v Willesee[35], Young J expressed the view that even where no confidentiality was involved, a court might intervene to restrain publication of a videotape or photograph taken by a trespasser where the circumstances were such as to make it unconscionable. As noted in Smethurst v Commissioner of the Australian Federal Police[36], little support for that view can be derived from the judgments in Lenah Game Meats. Gummow and Hayne JJ considered that the notion of unconscionable behaviour does not operate at large[37]. Gleeson CJ concluded[38] that the fact that the information was obtained tortiously, by trespass, was not sufficient to make it unconscientious for a person into whose hands that information later comes to use or publish it.

    [35](1986) 4 NSWLR 457 at 463.

    [36](2020) 94 ALJR 502 at 525 [82]; 376 ALR 575 at 595; see also (2020) 94 ALJR 502 at 558 [242]-[244]; 376 ALR 575 at 638-639.

    [37]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 244-245 [98], Gaudron J agreeing at 231 [58].

    [38]    Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 231 [55].

42. The respondent in Lenah Game Meats was unable to identify a legal or equitable right which could be pursued at trial and which would warrant the grant of an interlocutory injunction. The law of trespass could not avail it. It provides for a right to damages but not one to prevent the use of information obtained as a result of the trespass.

43. It may be that the law of defamation will provide a basis in some cases to prevent the publication of defamatory matter contained in records of activities made by surveillance devices, subject to available defences. There may well be some cases where the law of confidential information will protect private activities filmed surreptitiously from publication, but much may depend on what activities qualify as "private", as Lenah Game Meats shows. It may be concluded that the common law and equity may be effective to prevent some, but certainly not all, publications.

44. More to the point in the present case is s 8 of the SD Act, a law the validity of which is not challenged. An assessment of the burden effected by ss 11 and 12 must take as its starting point that the law prohibits the making of a record of activities on premises by the use of an optical surveillance device where a trespass is committed in doing so, and that the law imposes a substantial penalty for a contravention of that prohibition. On the other hand, s 8 will not be contravened if a person who is lawfully on the premises, for example an employee, makes a recording.

45. If the prohibition in s 8 is obeyed, there should be no persons who would become subject to the prohibitions of ss 11 and 12. It is to be assumed that most citizens will be obedient to the law[39]. Nevertheless, ss 11 and 12 add another level of prohibition directed to the communication of a record of activity obtained in breach of s 8. Importantly though, the prohibition applies only where there is conduct constituting a contravention of s 8, which includes trespassory conduct, and where the person publishing the record has knowledge of the circumstances which constitute the offence under s 8. All that is effectively burdened by ss 11 and 12 is the communication of information obtained through specified unlawful means to the knowledge of the person communicating that information. These are significant limitations on the extent of the burden.

    [39]Potter v Minahan (1908) 7 CLR 277 at 304-305.

    Necessity

46. The test of reasonable necessity looks to whether there is an alternative measure available which is equally practicable when regard is had to the purpose pursued, and which is less restrictive of the freedom than the impugned provision[40]. The alternative measure must be obvious and compelling[41]. The mere existence of another measure capable of achieving the same purpose will not be sufficient for a conclusion of lack of justification. The other measure must be equally practicable. To be equally practicable as the impugned provision, the alternative must achieve the same legislative purpose to the same degree, which is to say it must be possible to conclude that the alternative legislative measure is equally as effective[42]. Where there is a measure which has these qualities, the impugned legislative provision cannot be said to be necessary, in the sense that its choice is rational and therefore justified.

    [40]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568; Unions NSW v New South Wales (2013) 252 CLR 530 at 556 [44]; McCloy v New South Wales (2015) 257 CLR 178 at 210 [57], 217 [81]; Brown v Tasmania (2017) 261 CLR 328 at 371-372 [139]; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490 at 509 [78]; 391 ALR 188 at 207.

    [41]Monis v The Queen (2013) 249 CLR 92 at 214 [347]; Tajjour v New South Wales (2014) 254 CLR 508 at 550 [36]; McCloy v New South Wales (2015) 257 CLR 178 at 210-211 [57]-[58]; Brown v Tasmania (2017) 261 CLR 328 at 371-372 [139]; Clubb v Edwards (2019) 267 CLR 171 at 186 [6], 262 [263], 265 [266(3)], 265-266 [267]-[268], 269 [277], 337-338 [478]-[480]; Comcare v Banerji (2019) 267 CLR 373 at 401 [35]; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490 at 509 [78]; 391 ALR 188 at 207.

    [42]Tajjour v New South Wales (2014) 254 CLR 508 at 571 [113]-[114]; Unions NSW v New South Wales (2019) 264 CLR 595 at 614-615 [41]; Clubb v Edwards (2019) 267 CLR 171 at 336-337 [477].

47. The plaintiffs refer, as alternative measures, to the provisions of: the Surveillance Devices Act 1999 (Vic) ("the Victorian Act"); the Surveillance Devices Act 2016 (SA) ("the SA Act"); the Invasion of Privacy Act 1971 (Qld) ("the Queensland Act"); the Surveillance Devices Act 1998 (WA) ("the WA Act"); and the Surveillance Devices Act 2007 (NT) ("the NT Act"). The Queensland Act may be put to one side. It does not seek to regulate optical surveillance devices and records taken using them. The plaintiffs rely principally upon the Victorian Act and the provision it makes[43], by way of exception to its prohibitions on knowingly publishing a record of a private activity obtained by use of a surveillance device, for the publication of such a record in the public interest. A similar exception is to be found in the NT Act.

    [43]s 11(2)(b)(i).

48. Each of the four relevant statutes referred to concerns the recording by a surveillance device, relevantly an optical surveillance device, of a "private activity". The Victorian Act[44] prohibits the knowing installation, use or maintenance by a person of an optical surveillance device to record a "private activity" to which the person is not a party. A "private activity" is defined[45] to be "an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves", with certain exceptions. The Victorian Act also provides, by s 11(1), that, subject to sub-s (2), "a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of ... an optical surveillance device". By sub-s (2)(b)(i), sub-s (1) does not apply to a communication or publication that is no more than is reasonably necessary "in the public interest".

    [44]s 7.

    [45]s 3(1).

49. The NT Act also creates offences regarding: the installation of an optical surveillance device to monitor a "private activity"[46], which is defined in terms similar to the Victorian Act[47]; and the communication or publication of a record of a private activity, where the publisher knows it has been made as a direct or indirect result of the use of an optical surveillance device[48]. The NT Act permits the communication or publication of a record if it is reasonably necessary in the public interest[49]. The SA Act and the WA Act contain similar offences relating to the use of optical surveillance devices and the publication of records of a private activity, but the question as to whether the latter is in the public interest is a matter for a judge[50].

    [46]s 12(1).

    [47]See Victorian Act, s 3(1) (definition of "private activity"); NT Act, s 4 (definition of "private activity").

    [48]NT Act, s 15(1).

    [49]s 15(2)(b)(i).

    [50]SA Act, ss 10 and 11; WA Act, s 31.

50. The Victorian Act and the other statutes apply more broadly in the first instance than the SD Act. As earlier explained, the burden effected by ss 11 and 12 of the SD Act is significantly limited because they apply only where trespassory conduct has taken place and the publisher or possessor knows of such conduct. The Victorian and other mentioned State and Territory statutes, by contrast, apply their prohibitions to any publication of a record of a private activity made by an optical surveillance device. That is to say, the prohibition applies to the publication of a record howsoever obtained, whether lawfully or unlawfully. This casts doubt upon whether they truly effect a lesser burden on the freedom, at least in the first instance.

51. The public interest exception may not ameliorate the burden which the other statutes effect to the extent for which the plaintiffs contend. The exception will only apply where it is shown that the dissemination of information about what is a private activity is truly in the public interest. This cannot be assumed to be an easy task. The plaintiffs may consider that in their area of concern it is more likely to be established, but the question of the burden effected on the freedom by statute is to be assessed more generally, by reference to its effect as a whole[51].

    [51]    Brown v Tasmania (2017) 261 CLR 328 at 360 [90].

52. It may be accepted that, generally speaking, the other statutory schemes pursue the purpose of protection of privacy. But the privacy interest to which they refer differs from the SD Act. The Victorian and other statutes are based upon a conception of privacy viewed from the perspective of the parties to a private activity and their personal interests. The SD Act seeks to protect privacy interests in activities conducted on premises as an aspect of a person's possessory rights over their property. It may therefore be concluded that the Victorian and other statutes do not pursue the same purpose when regard is had to the interests that they seek to protect.

53. It may also be accepted that a purpose of s 8 of the SD Act is to prevent or deter trespassory conduct. Sections 11 and 12 further that purpose. To make those provisions subject to a public interest exception would be inconsistent with the achievement of that purpose, since the exception is likely to have the effect of encouraging persons to unlawfully enter agricultural land to conduct surveillance of activities on it. The observation of a cross-agency working group of the New South Wales Government, in not recommending that a public interest exception be made to the SD Act[52], was plainly correct.

    [52]New South Wales, Response to related recommendations arising out of the 2018 Parliamentary Inquiry into Landowner Protection from Unauthorised Filming or Surveillance (2020) at 11.

54. Moreover, it may be concluded by reference to ss 8, 11 and 12 that the New South Wales Parliament has largely decided where the public interest lies. It has chosen a scheme of regulation of optical surveillance devices where trespassory conduct is discouraged. It is to be inferred that it is the New South Wales Parliament's view that such conduct lies at the heart of the problems associated with the use of surveillance devices and their intrusion into privacy. A public interest exception to publication would fundamentally alter that scheme. It is not possible to conclude that it would operate in the same way or meet its objective. It cannot be said that such a measure would make the SD Act equally efficacious in the protections it seeks to provide.

    Adequacy of balance

55. If, as here, a law presents as suitable and necessary, it is to be regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom[53].

    [53]Comcare v Banerji (2019) 267 CLR 373 at 402 [38]; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490 at 510 [85]; 391 ALR 188 at 209.

56. The protection of privacy interests has long been recognised as a social value which is protected by the tort of trespass[54]. Its importance is obvious. The burden effected by ss 11 and 12 of the SD Act on the freedom, in the pursuit of that purpose, cannot be said to be great. It is significantly limited by the prohibitions affecting only those communications made by persons who know that the records of activities they publish have been obtained by unlawful acts of trespass.

    [54]    TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 344-345 [52].

    Answers

57. The plaintiffs' challenge to the validity of ss 11 and 12 of the SD Act fails. We would propose that the following answers be given:

    1.        No.

    2.        Not necessary to answer.

    3.        No.

    4.        Not necessary to answer.

    5.        The plaintiffs should pay the defendant's costs.

58. The answers we propose to questions one and three are based upon a broader view of the valid operation of ss 11 and 12 of the SD Act than that taken by Edelman J (with whom Steward J agrees). Because we take that broader view, we are able to agree with his Honour that the sections do not impermissibly burden the implied freedom of political communication in its application to the communication or publication by a person of a record or report 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 s 8 of the SD Act. On that basis, it would not be necessary to determine whether ss 11 and 12 burden the implied freedom in other applications. We also agree with the answers proposed by Edelman J with respect to questions two and four, as reformulated by his Honour, and question five.

59. GAGELER J.   An account of the facts set out in the special case is given by Kiefel CJ and Keane J. Without repeating their Honours' account, I will need to supplement it in one matter of detail.

60. For the reasons given by Kiefel CJ and Keane J, as well as by Gordon J, the question of law ripe for judicial determination on the facts set out in the special case is whether the prohibitions on the publication and possession of a visual record in ss 11 and 12 of the Surveillance Devices Act 2007 (NSW) infringe the constitutionally implied freedom of political communication in their application to a visual record that has resulted from a contravention of s 8.

61. Farm Transparency International Ltd is shown by the special case to have been complicit in a contravention of s 8 engaged in by Mr Delforce in the past. That fact does not, in my opinion, confine the question for judicial determination more narrowly.

62. Farm Transparency is described in the special case as having been established as a not-for-profit charity for purposes which include preventing and relieving the suffering of animals by raising public awareness of animal cruelty. It is described as having a practice of engaging in activities which include the publication of visual records of animal agricultural practices in New South Wales. An affidavit forming part of the special case deposes that all of its activities "are based on the photographic and audio-visual material it has taken, organised, received or obtained". The affidavit deposes that the photographic and audio-visual material Farm Transparency takes, organises, receives or obtains records animal agriculture practices of a kind that of their nature are never recorded voluntarily or with the consent of the proprietor of the agricultural business. The affidavit concludes by deposing that "[i]n the future, if [Farm Transparency] receives information, whether video footage or audio recordings or otherwise, that shows animal cruelty practices in New South Wales, [Farm Transparency] would wish to publish that information".

63. Farm Transparency undoubtedly desires, and intends, to do that which it has done in the past and asks this Court to declare that it can lawfully do in the future: to publish and possess visual records of animal agricultural practices in New South Wales created by others in contravention of s 8. To the extent that it seeks declarations to that effect, its claim for relief is not hypothetical in a sense that is relevant to the exercise of jurisdiction[55]. Unless it is to be denied relief by reason of its past complicity in a contravention of s 8, it is entitled to an adjudication of the totality of its claim that the purported constraints imposed by ss 11 and 12 on its freedom to publish and possess visual records that have resulted from contraventions of s 8 infringe the constitutionally implied freedom of political communication[56].

    [55]See The Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305.

    [56]See Croome v Tasmania (1997) 191 CLR 119 at 125-127, quoting Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545 at 570 and Pharmaceutical Society of Great Britain v Dickson [1970] AC 403 at 433.

64. The construction and legal operation of ss 11 and 12 are also explained by Kiefel CJ and Keane J, as well as by Gordon J. To the extent that their explanations of the elements of the offences created by those sections differ, I do not take a position. Enough for me is to note that neither offence is committed without knowledge that the visual record published or possessed was created by use of an optical surveillance device in circumstances of a trespass to private property criminally prohibited by s 8.

65. Features of the legislative scheme which I consider to be of constitutional significance are the following. The legislative purpose is not exhausted by the object stated in s 2A(c). The broader purpose of s 8 is to protect the privacy of all activities that occur on private property. The prohibitions in ss 11 and 12 enhance the operation of s 8 by disincentivising breach of s 8 in accordance with what has elsewhere been described as "[t]he 'dry-up-the-market' theory, which posits that it is possible to deter an illegal act that is difficult to police by preventing the wrongdoer from enjoying the fruits of the crime"[57]. Exceptions in ss 11(3) and 12(2)(c) mean that neither prohibition applies to a visual record already in the public domain.

    [57]Bartnicki v Vopper (2001) 532 US 514 at 550.

66. Having noted those features of the legislative scheme at the outset, I am able to come immediately to the constitutional issue at the heart of the matter. The issue is whether it is compatible with the maintenance of the constitutionally prescribed system of government, for the purpose of protecting the privacy of activities on private property, to impose blanket prohibitions on the possession and communication of a visual record known to have been created as a result of a trespass to private property and not otherwise in the public domain.

67. Implicit in that framing of the issue is rejection of any notion that the purpose of disincentivising contravention of a criminal prohibition can alone be a purpose capable of justifying a law that imposes a burden on freedom of political communication[58]. To accept such a notion would be to conflate the purpose of a law – the "public interest sought to be protected and enhanced" by the law[59] – with the means adopted by the law to achieve that purpose. The consequence would be to allow a legislative scheme to be designed to bootstrap itself into constitutional validity.

    [58]Compare Bartnicki v Vopper (2001) 532 US 514 at 529-530, quoted in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 228-229 [48]. See also, in the Ch III context, Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 192 [85]; 388 ALR 1 at 28.

    [59]Cunliffe v The Commonwealth (1994) 182 CLR 272 at 300.

68. The criminal prohibitions in ss 11 and 12 on communication and possession of a visual record, and the criminal prohibition in s 8 of the means of creation of a visual record, are complementary components of a single legislative scheme. By that legislative scheme, the privacy of activities on private property is sought to be protected. To the extent that the legislative scheme prohibits communication or possession of an extant visual record of the carrying on of an activity that is of governmental or political concern, it burdens freedom of political communication. That burden falls to be justified, if at all, by reference to the underlying legislative purpose of protecting the privacy of activities on private property.

69. For reasons to be developed, I consider that the burden on freedom of political communication imposed by the blanket criminal prohibitions in ss 11 and 12, in their application to a visual record that has resulted from the use of an optical surveillance device in contravention of s 8, is unjustified. The result is that I consider each of the prohibitions, in that application, to infringe the constitutional guarantee of freedom of political communication.

    The significance of Lange

70. The interest of an owner or occupier in the privacy of activities that occur on private property has long been an interest which the law has afforded a measure of protection[60].

    [60]Plenty v Dillon (1991) 171 CLR 635 at 647; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 344-345 [52], 346 [58]; Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502 at 533-534 [124]; 376 ALR 575 at 606.

71. Pursuit of the protection of that interest is doubtless compatible with the constitutionally prescribed system of government which the constitutional guarantee of freedom of political communication exists to protect. But even where it can be accepted without question that a law burdening freedom of political communication does so in pursuit of a purpose that is compatible with the constitutionally prescribed system of government, it cannot simply be accepted without question that the same law pursues that purpose in a manner that is compatible with the constitutionally prescribed system.

72. To the contrary, as I have explained in the past[61]:

    "The implied constitutional freedom is a constraint on legislative design. It limits legislative options. The consequence of the implied constitutional freedom is that there are some legitimate ends which cannot be pursued by some means, the result of which in some circumstances is that some ends will not be able to be pursued to the same extent as they might have been pursued absent the implied constitutional freedom. Means which come at too great a cost to the system of representative and responsible government established by the Constitution must be abandoned or refined. Means which are overbroad may need to be narrowed."

    [61]Tajjour v New South Wales (2014) 254 CLR 508 at 584 [163].

73. Appreciating the impact of the implied constitutional freedom on the measure of protection that can be afforded by law to the privacy of activities that occur on private property is assisted by examining what Lange v Australian Broadcasting Corporation[62] held to be the impact of the implied constitutional freedom on the measure of protection that can be afforded by law to personal reputation. For the application of constitutional principle to be consistent, the impacts must be coherent.

    [62](1997) 189 CLR 520.

74. In Lange, the implied constitutional freedom was held to necessitate adjustment of the balance until then struck in the law of defamation between protection of personal reputation and freedom of speech. The adjustment involved extending the common law defence of qualified privilege to recognise that "each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia"[63].

    [63](1997) 189 CLR 520 at 571.

75. The precept of Lange is that freedom of communication to and between electors, and between electors and elected legislative and executive representatives, on matters of government and politics is an "indispensable incident" of the system of representative and responsible government prescribed by the Constitution[64]. Within the scope of the freedom is communication of disagreeable or objectionable information from few to many by way of "agitation" for legislative and political change[65]. Explained in the language of Kirby J[66]:

    "The form of government created by the Constitution is not confined to debates about popular or congenial topics, reflecting majority or party wisdom. Experience teaches that such topics change over time. In part, they do so because of general discussion in the mass media."

    [64](1997) 189 CLR 520 at 559-560. See also Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539 at 555-556 [44].

    [65]Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539 at 555-556 [44]-[45].

    [66]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 287 [218].

76. Lange's insight, first elucidated in Australian Capital Television Pty Ltd v The Commonwealth[67] and Nationwide News Pty Ltd v Wills[68], is that the majoritarian principle, upon which our system of representative and responsible government relies for its outworking, carries an inherent risk of legislative or executive impairment of "the capacity of, or opportunity for, the Australian people to form the political judgments required for the exercise of their constitutional functions"[69]. An aspect of that systemic risk is that "political communications unhelpful or inconvenient or uninteresting to a current majority might be unduly impeded"[70].

    [67](1992) 177 CLR 106 at 143-145.

    [68](1992) 177 CLR 1 at 50-51.

    [69]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51. See McCloy v New South Wales (2015) 257 CLR 178 at 227-228 [114]-[117], 265 [245].

    [70]Brown v Tasmania (2017) 261 CLR 328 at 390 [202]. See also Unions NSW v New South Wales (2019) 264 CLR 595 at 622 [66].

77. The implied freedom of political communication is a structural implication serving to safeguard the efficacy of the system against realisation of that systemic risk[71]. Lange's demand for legislative justification, and correlative judicial scrutiny, of a legislative or executive burden on freedom of political communication is attuned to its mitigation.

    [71]See Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 133-140; McCloy v New South Wales (2015) 257 CLR 178 at 222-230 [100]-[122].

78. Lange postulates, and Brown v Tasmania[72] illustrates, that the balancing of the freedom to communicate on matters of government and politics against the protection of other legitimate societal interests is a matter for legislatures to "determine" but for courts to "supervise"[73]. Under our system of representative and responsible government, as under some other similar systems, "the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny": "[w]hat is of utmost relevance is the resulting legislative choice"[74]. Legislative judgment about how a particular balance ought to be struck must be accorded respect. "But, in the ultimate analysis, it is for the [c]ourt to determine whether the constitutional guarantee has been infringed"[75].

    [72](2017) 261 CLR 328.

    [73]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 50. See McCloy v New South Wales (2015) 257 CLR 178 at 230 [123].

    [74]Quebec (Attorney General) v A [2013] 1 SCR 61 at 233 [363].

    [75]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 144.

    The prohibitions infringe the constitutional guarantee

79. It may well be legitimate to seek to dry up an illegal market for stolen goods by prohibiting the possession and sale of goods known to have been obtained by burglary. However, the market sought to be dried up by the prohibitions in this case is a constitutionally protected "marketplace of ideas"[76]. That marketplace is foundational to a "society organised under and controlled by law"[77]. Within the marketplace of ideas, factual information bearing on matters of political and governmental concern known to its possessor and potential communicator to be true is all too often in short supply.

    [76]See Abrams v United States (1919) 250 US 616 at 630. See also Ridd v James Cook University (2021) 95 ALJR 878 at 887 [31]; 394 ALR 12 at 23.

    [77]McCloy v New South Wales (2015) 257 CLR 178 at 229-230 [122], quoting Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 142 and Samuels v Readers' Digest Association Pty Ltd (1969) 120 CLR 1 at 15.

80. The prohibitions on communication and possession in question remove one source of that supply of true factual information having the potential to bear on matters of political and governmental concern. The source removed – visual imagery – is of its nature not only factual but peculiarly communicative. In Levy v Victoria, McHugh J adopted the submission of counsel that "[t]he impact of television depiction of the actual perpetration of cruelty, whether to humans or to other living creatures, has a dramatic impact that is totally different [from] saying, 'This is not a good idea'"[78]. The internet and the smartphone have only reinforced the persuasive power of visual imagery.

    [78](1997) 189 CLR 579 at 624.

81. Not only do the blanket prohibitions on possession and communication of a visual record known to have been created as a result of a trespass to private property remove a source of peculiarly communicative true factual information capable of bearing on matters of political and governmental concern. They do so indiscriminately – regardless of the gravity of the information and of the extent to which electors, their elected representatives and executive officers may have an interest in receiving it.

82. Having regard to those considerations, I am of the opinion that the prohibitions impose a greater burden on political communication than can in all circumstances be justified as appropriate and adapted to the protection of the privacy of activities on private property. 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 could be warranted for every activity which might be shown by a visual record to have occurred on private property. Expressed in terminology extolled in and since McCloy v New South Wales, the prohibitions are not "adequate in [their] balance"[79].

    [79](2015) 257 CLR 178 at 195 [2].

83. That the qualitative extent of the burden on communication and receipt of information about matters of political and governmental concern is more than can be justified for the purpose of protecting the privacy of activities on private property is sufficiently illustrated by Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[80]. There the recorded facts were as follows[81]:

    "Lenah Game Meats Pty Ltd conducted the business of processing game meat, including possum meat which it sold for export. It killed and processed Tasmanian brush tail possums at licensed abattoirs. An unidentified person or persons broke and entered the abattoirs and, by boring holes in the roof, installed hidden video cameras. Those cameras recorded the possum-killing operations without the consent or knowledge of Lenah Game Meats. The cameras and video recording were retrieved by an unidentified person or persons and the recording was supplied to Animal Liberation Ltd (Animal Liberation), which, in turn, supplied the recording or part of it, to the Australian Broadcasting Corporation (the ABC) for television broadcasting."

    [80](2001) 208 CLR 199.

    [81](2001) 208 CLR 199 at 200.

84. The position of the ABC was described by Gleeson CJ[82]:

    "The [ABC] is in the business of broadcasting. ... [I]ts position is not materially different from a commercial broadcaster with whom it competes. In the ordinary course of its business it publishes information obtained from many sources, thereby contributing to the flow of information available to the public. The sources from which that information may come, directly or indirectly, cover a wide range of behaviour; some of it impeccable, some of it reprehensible, and all intermediate degrees. If the [ABC], without itself being complicit in impropriety or illegality, obtains information which it regards as newsworthy, informative, or entertaining, why should it not publish?"

    [82](2001) 208 CLR 199 at 228 [46].

85. The question was rhetorical. The holding in Lenah Game Meats was that there existed no basis in law upon which the ABC could be enjoined from publishing the information it had received in the form of the video recording. That was so notwithstanding that the ABC "probably realised, when it received the [video recording], that it had been made in a clandestine manner" and "certainly knew that by the time the application for an injunction was heard"[83].

    [83](2001) 208 CLR 199 at 214 [1].

86. The ABC in fact incorporated segments of the video recording into a story which it broadcast on the "7.30 Report" on 4 May 1999. As described in the narrative statement of facts in the appellant's submissions in Lenah Game Meats, that story was concerned with:

    .the harvesting, slaughter and export of Australia's wildlife;

    .the adequacy and possible reform of the Tasmanian Animal Welfare Code of Practice for Processing Brush Tail Possum which covered the capture, handling, transport and slaughter of possums in that State;

    .the concerns of animal liberation groups about the treatment of possums, the holding and slaughtering process of such animals, the adequacy of the Tasmanian Animal Welfare Code of Practice for Processing Brush Tail Possum and the health and safety of possum meat for consumption;

    .inspections by State and Commonwealth authorities of the possum slaughtering process at Lenah Game Meats' abattoirs;

    .the role of the Tasmanian Department of Agriculture and Fisheries and Department of Health in regulating the export of wildlife; and

    .the views of the Tasmanian Department of Primary Industry and the Animal Welfare Advisory Committee concerning Lenah Game Meats' activities.

87. The slaughter of animals for export is within the scope of the legislative power of the Commonwealth Parliament[84]. The subject-matter was regulated under Commonwealth legislation at the time of the "7.30 Report" broadcast sought unsuccessfully to be enjoined in Lenah Game Meats[85], had been so regulated since at least 1935[86], and remains so regulated[87].

    [84]See O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565.

    [85]See the Export Meat Orders 1985 (Cth) and the Prescribed Goods (General) Orders 1985 (Cth) made pursuant to the Export Control (Orders) Regulations 1982 (Cth) under the Export Control Act 1982 (Cth).

    [86]See the Meat Export Control (Licences) Regulations (Cth) made under the Meat Export Control Act 1935 (Cth) and the Commerce (Meat Export) Regulations (Cth) made under the Customs Act 1901 (Cth), considered in O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565.

    [87]See the Export Control(Meat and Meat Products)Rules 2021 (Cth) and the Export Control(Poultry Meat and Poultry Meat Products)Rules2021 (Cth) made under the Export Control Act 2020 (Cth).

88. By force of the prohibitions now in question, the ABC or any other broadcaster, as well as Farm Transparency or any other publisher of video content, would now be prohibited from publishing or even possessing a similar video recording supplied to it in similar circumstances if it knew, whether by inference from the subject-matter of the recording or other information, that the recording was created as a result of trespass to an abattoir in New South Wales. That would be so irrespective of the significance of the subject-matter of the recording to government and political matters. Therein can be seen "the incremental effect of [the prohibitions] on the real-world ability of a person or persons to make or to receive communications which are capable of bearing on electoral choice"[88].

    [88]Brown v Tasmania (2017) 261 CLR 328 at 386 [188]. See also at 365 [109].

89. The special case alludes to other instances in recent history of video recordings – apparently showing animal cruelty and apparently created as a result of a trespass to private property – having come into the possession of a broadcaster, having been published by the broadcaster, and having stimulated national debate leading to executive inquiry and legislative change. There is no need to set out the details of those instances. They are notorious.

90. This is not an occasion for prognostication about how the common law rules and equitable principles examined in Lenah Game Meats and found not to impede publication of the video recording in that case might develop in the future in Australia. Clear from Lange[89], emphasised by Gleeson CJ in Lenah Game Meats itself[90], and recognised in contemporary academic writings on the potential development of a tort of privacy in Australia[91], is that any development would need itself to follow a path consistent with the constitutional guarantee of freedom of political communication. That is so for development of the substantive law demarcating those activities that will and those that will not be afforded some measure of protection against public scrutiny at common law or in equity[92]. That must also be so for development of the adjectival law identifying considerations that are appropriate to be weighed in determining whether or not publication or possession will be the subject of discretionary relief[93]. What is inconceivable is that any rule of common law or principle of equity would ever develop to the extent of prescribing and enforcing a blanket prohibition on communication or possession of any visual record known to have been created as a result of a trespass to private property irrespective of the nature of the activities revealed and irrespective of the systemic importance of electors, legislators and officers of the executive becoming aware of those activities.

    [89](1997) 189 CLR 520 at 566. See also Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539 at 555-556 [44]-[45].

    [90](2001) 208 CLR 199 at 219-220 [20], 224 [35].

    [91]See Gligorijevic, "A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats" (2021) 44 University of New South Wales Law Journal 673 at 702-707; Lerch, "The Judicial Law-Making Function and a Tort of Invasion of Personal Privacy" (2021) 43 Sydney Law Review 133 at 138.

    [92]See now A v Hayden (1984) 156 CLR 532 at 544-545, 572; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 454-456; Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 at 456-457 [25]-[27].

    [93]See now Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 72-73 [31]-[32].

91. The point is not that conformity with the constitutional guarantee of freedom of political communication means that political communication must always trump privacy. The point is that conformity with the constitutional guarantee means that privacy cannot always trump political communication.

92. Tellingly, legislative regimes which impose prohibitions on publication of visual records in order to protect the privacy of activities on private property in Victoria[94], Western Australia[95] and the Northern Territory[96] all contain exceptions for publications judicially determined to be in the public interest. The case-by-case judicial determination of the public interest imported into those broadly comparable State and Territory legislative regimes by those exceptions operates relevantly to ensure that the public interest in protecting privacy does not prevail in circumstances where protection by prohibiting publication of an extant record of activities that occurred on private property would be disproportionate to the public interest in electors and their elected representatives becoming aware of those activities[97].

    [94]See s 11(2)(b)(i) of the Surveillance Devices Act 1999 (Vic).

    [95]See s 9(2)(a)(viii) and Pt 5 of the Surveillance Devices Act 1998 (WA).

    [96]See s 15(2)(b)(i) of the Surveillance Devices Act 2007 (NT).

    [97]See Hogan v Hinch (2011) 243 CLR 506 at 536-537 [31]-[32], 544 [50], 548-549 [69]-[72], 556 [98].

93. Those other State and Territory legislative regimes are not just illustrations of the latitude of choice available to a legislature in protecting the privacy of activities occurring on private property in a manner that conforms to the constitutionally prescribed system of government. The public interest exceptions they incorporate cannot be explained away as mere details of legislative design.

94. The present significance of those other State and Territory legislative regimes is that they illustrate an adequacy of balance that is lacking from the blanket prohibitions imposed in New South Wales. An extant visual record of activities that in fact occurred on private property, which would be strongly or even overwhelmingly in the public interest for electors and their elected representatives to be made aware of, would be communicable if the record were of activities on private property in other States and Territories. The same extant visual record could not be knowingly communicated or even knowingly possessed if it were of activities on private property in New South Wales.

    Construing the prohibitions more narrowly

95. What I have written so far explains my conclusion that, were ss 11 and 12 to operate fully and completely according to their terms in their application to a visual record that has resulted from a contravention of s 8, they would impose an unjustified burden on freedom of political communication in their application to communication and possession of (at least) some visual records which depict activities properly the subject-matter of political communication. Because that is so, ss 11 and 12 infringe the constitutional guarantee of freedom of political communication in their application to a visual record that has resulted from a contravention of s 8 and cannot be valid in their entirety.

96. The question is then as to whether, and if so how, ss 11 and 12 might be construed to have a narrower application in accordance with s 31(2) of the Interpretation Act 1987 (NSW) so as not to infringe the constitutional guarantee.

97. The argument of the plaintiffs is that ss 11 and 12 should be construed to have no application to publication or possession of a visual record that is the subject-matter of a political communication. I accept that construction, which seems to me to involve an orthodox application of the orthodox understanding that "where a law is intended to operate in an area where Parliament's legislative power is subject to a clear limitation, it can be read as subject to that limitation"[98].

    [98]Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 502-503. See Coleman v Power (2004) 220 CLR 1 at 55-56 [110]; Clubb v Edwards (2019) 267 CLR 171 at 221-222 [149], 290-291 [341].

98. The Attorney-General of the Commonwealth has presented what might or might not be a different argument. The argument, which has been stated only at a high level and which has not been developed, has been couched in terms that s 31(2) of the Interpretation Act produces the result that each of ss 11 and 12 "operates to the extent that it does not impose an unjustified burden on the freedom of political communication". Given that I find myself in dissent in answering the questions asked by the parties in the special case, I propose to respond to the argument only in summary form.

99. The argument needs to be considered against the background of what in Pidoto v Victoria[99] Latham CJ described as an "interesting argument" then put on behalf of the Commonwealth. The argument was to the effect that, in the application of the materially identical provision in s 46(b) of the Acts Interpretation Act 1901 (Cth), "the function of the Court, when it finds [an enactment expressed in general terms] bad in its application to particular circumstances, is limited to declaring [the enactment] bad to that extent, the enactment being left to operate in all cases to which it can validly apply"[100]. The argument was rejected.

    [99](1943) 68 CLR 87 at 108.

    [100](1943) 68 CLR 87 at 97.

100. Latham CJ said that the argument appeared "to require the Court to perform a feat which is in essence legislative and not judicial"[101]. Section 46(b) of the Acts Interpretation Act, he pointed out, did not purport to set out "a rule of law" as to the circumstances in which an enactment expressed in general terms would have valid application but rather set out "a rule of construction" to the effect that "if an intention of Parliament that there should be a partial operation of the law based upon some particular standard criterion or test can be discovered from the terms of the law itself or from the nature of the subject matter with which the law deals, it can be read down so as to give valid operation of a partial character"[102]. Post-judicially, Latham CJ referred to those principles as belonging to a body of law relating "rather to the interpretation of statutes in the light of the [Acts Interpretation Act] than to the interpretation of the Constitution itself"[103].

     [101](1943) 68 CLR 87 at 109, quoting R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 676 (cleaned up).

     [102](1943) 68 CLR 87 at 110-111. See also Re Nolan; Ex parte Young (1991) 172 CLR 460 at 487.

     [103]Latham, "Interpretation of the Constitution", in Else-Mitchell (ed), Essays on the Australian Constitution, 2nd ed (1961) 1 at 46.

233. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[238], this Court considered whether principles concerning breach of confidence extended to the publication of a film showing cruelty to possums which had been obtained "by unlawful entry and secret surveillance" although the activities recorded were not "secret", and nor was a relationship of confidence "imposed upon people who might see the operations". The different reasons given by members of this Court, Callinan J dissenting, for allowing the appeal and refusing relief illustrate the different views concerning the boundaries of the action for breach of confidence.

     [238](2001) 208 CLR 199 at 221 [24]‑[25].

234. The most restrictive approach, at least in relation to individuals, was taken by Gleeson CJ, who considered that the protection afforded by the law concerning breach of confidence did not extend to every activity done on private property. His Honour said that the activities had been conducted on private property, but had not been shown to be private in any other sense[239]. Gleeson CJ said that the foundation of much of the privacy protection afforded by the action for breach of confidence is "human dignity"[240]. Although Gleeson CJ did not express a final conclusion, he nevertheless suggested that the action for breach of confidence might, in some circumstances, protect the privacy of a corporation[241].

     [239](2001) 208 CLR 199 at 224 [35].

     [240](2001) 208 CLR 199 at 226 [43].

     [241](2001) 208 CLR 199 at 226‑227 [43].

235. A potentially broader approach to breach of confidence was taken by Gummow and Hayne JJ, with whom Gaudron J relevantly agreed[242], although their approach was narrower in respect of the persons entitled to rely on a breach of confidence. Their Honours referred to circumstances of breach of confidence as potentially including "the disclosure of private facts and unreasonable intrusion upon seclusion"[243] but denied the respondent the ability to rely upon those circumstances because it was a corporation rather than a natural person[244].

     [242](2001) 208 CLR 199 at 232 [61].

     [243](2001) 208 CLR 199 at 256 [125]. See also at 255 [123].

     [244](2001) 208 CLR 199 at 257‑258 [129]‑[132].

236. Kirby J took an even less restrictive approach than Gummow and Hayne JJ (Gaudron J agreeing), considering that the disclosure of information could be restrained simply on the basis that it was obtained "illegally, tortiously, surreptitiously or otherwise improperly"[245]. His Honour only allowed the appeal on the basis that an injunction should have been refused as a matter of discretion[246]. Callinan J took the least restrictive approach and would have upheld the restraint and dismissed the appeal[247].

     [245](2001) 208 CLR 199 at 272 [170].

     [246](2001) 208 CLR 199 at 288 [220]‑[221].

     [247](2001) 208 CLR 199 at 341 [353].

237. At its narrowest, the present state of the law concerning the third category of breach of confidence is, therefore, that it can extend to all private information where human dignity is concerned. In that category, it cannot be conclusively said that it extends to corporations or that human dignity would be compromised by the communication of any private information.

238. There are other boundaries of the law concerning the obligation of confidence that are also unsettled. For instance, there remains dispute about the extent to which the obligation is imposed upon persons who are not primarily liable for a breach of confidence and do not know that the information is confidential. Some cases suggest that the obligation extends to a recipient who could reasonably have known that the information was confidential[248] and potentially even to "innocent" third parties[249], arguably creating a duty in both cases to consider whether information is confidential before communicating or publishing it. Other decisions appear to deny this, other than in circumstances of wilful blindness or where a person has been told that information is in fact confidential[250]. And others have expressly, and carefully, avoided the controversy of "the extent to which actual knowledge is necessary" beyond circumstances of wilful blindness[251]. The answer to this question may also depend upon the category of breach of confidence that is involved, particularly because an objective assumption of responsibility creates duties independently of subjective knowledge[252].

     [248]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 225 [39]. See also Minister for Mineral Resources v Newcastle Newspapers Pty Ltd (1997) 40 IPR 403 at 405; Retractable Technologies v Occupational and Medical Innovations (2007) 72 IPR 58 at 74 [61], 77‑81 [68]‑[86].

     [249]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 295 [242], referring to Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation (1999) 9 Tas R 355 at 388‑389 [75]‑[76].

     [250]Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] 1 WLR 1556 at 1563 [25]‑[26], 1565 [39]; [2013] 4 All ER 781 at 789, 791; Earl v Nationwide News Pty Ltd [2013] NSWSC 839 at [17].

     [251]Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109 at 281; Hunt v A [2008] 1 NZLR 368 at 384‑385 [92]‑[94]. Compare Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47‑48.

     [252]See eg Wheatley v Bell [1982] 2 NSWLR 544 at 548.

239. The boundaries of the public interest defence to breach of confidence are also not yet settled. One aspect of that defence is sometimes said to be the principle that a person cannot be made "the confidant of a crime or a fraud"[253]. As Gibbs CJ observed in A v Hayden[254], that defence has been expanded in England to include misconduct generally. However, his Honour did not decide whether that expansion should be embraced in Australia. It has thus been said that the extent to which the defence applies in Australia "is not clear"[255]. To the extent that the defence operates, it may be doubted whether it permits disclosure to the world at large, or to a narrower audience – for example, relevant law enforcement authorities[256]. Even the foundations of the defence, based upon a case that has been reported in significantly different terms[257], have been questioned[258].

     [253]Gartside v Outram (1856) 26 LJ Ch 113 at 114.

     [254](1984) 156 CLR 532 at 544‑545.

     [255]AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464 at 513 [177].

     [256]Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109 at 282‑283.

     [257]Gartside v Outram (1856) 26 LJ Ch 113; 5 WR 35; 3 Jur (NS) 39; 28 LT (OS) 120.

     [258]Corrs Pavey Whiting & Byrne v Collector of Customs(Vic) (1987) 14 FCR 434 at 452‑456.

240. It is unnecessary to resolve these issues in this case because the application of the implied freedom of political communication in relation to the Surveillance Devices Act can be resolved on the basis of the existing boundaries of the equitable obligations of confidence. The equitable doctrine must develop consistently with the implied constitutional freedom of political communication[259]. But its present boundaries are entirely consistent with that constitutional freedom. In particular, representative democracy does not provide a licence to disregard express or implied undertakings of confidence or to reveal trade or other secrets. Indeed, representative democracy can be enhanced by the insistence upon undertakings of confidence on matters that relate to the core of political decision‑making such as rules concerning the secrecy of recent Cabinet discussion.

     [259]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566.

241. It is no more necessary for representative democracy to require, in the name of political communication, a liberty to impair a person's dignity by the communication of private and personal information concerning lawful activities that might be characterised in the broad sense as political, than it is for the law to provide a liberty to assault a person or to trespass on a person's property in order to communicate about matters that could broadly be described as political.

     The validity of ss 8, 11 and 12 in their relevant application

     The extent of the burden upon political communication

242. In their relevant application to the publication or communication by a person involved in a trespass of a record, obtained by the trespass, showing the carrying on of a lawful activity on private property or in a vehicle, ss 8, 11 and 12 of the Surveillance Devices Act extend beyond the existing law concerning the communication or publication of confidential information. But not far beyond.

243. The complicity of Mr Delforce and Farm Transparency for any breach of ss 11 and 12 arising from a trespass by Mr Delforce contrary to s 8 has a close parallel with the joint liability of persons who are principals of an agent acting in breach of confidence or who have a common purpose that includes breach of confidence[260]. But, as explained above, a communication of the type of non-human animal agriculture information described in the special case as having been recorded, and being likely to be recorded, by trespass in which Farm Transparency was complicit was only recognised as capable of protection by obligations of confidence in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd by Kirby J and Callinan J. The other members of the Court treated such circumstances as falling outside the existing law of breach of confidence, either because they are not sufficiently private (Gleeson CJ), or because they might concern activities of a corporation rather than a natural person (Gummow and Hayne JJ, Gaudron J agreeing).

     [260]Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] 1 WLR 1556 at 1563 [26]; [2013] 4 All ER 781 at 789. See also Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89 at 112 [82]; 398 ALR 404 at 425.

244. In their relevant application, ss 8, 11 and 12 of the Surveillance Devices Act involve an incremental extension of the general law of confidentiality. Although the provisions, unlike equity, do not involve a discretion to refuse to restrain the activity, in both cases the person seeking to communicate or publish has no liberty to do so; other remedies are available in equity. Sections 8, 11 and 12 do, however, extend the prohibition upon communication or publication in two respects. First, they extend to lawful activities on private property or in a vehicle that are not necessarily confidential within the present boundaries of obligations of confidence. Secondly, they extend to circumstances where those activities are carried on by corporations, albeit through human agents.

245. In those two respects, ss 8, 11 and 12 of the Surveillance Devices Act, in their relevant application, impose a burden on the freedom of political communication by restraining those who are complicit in a trespass from revealing private information about lawful activities exclusively obtained from their trespass.

     The purposes of ss 11 and 12, read with s 8, of the Surveillance Devices Act

246. Section 2A of the Surveillance Devices Act provides for its objects. Apart from objects concerning law enforcement agencies, an object is "to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices". This express general statement of statutory purposes is necessarily more general than the purpose of a particular provision, which a court is required to characterise with greater specificity; indeed, the general statement of the purposes of an Act might not even touch upon the particular purposes of some provisions[261]. The appropriate approach to ascertaining the purpose of particular provisions, as the Solicitor‑General of the State of Queensland submitted, is that of the Supreme Court of Canada in R v Moriarity[262], where Cromwell J said that if the purpose is "articulated in too general terms, it will provide no meaningful check on the means employed to achieve it" but if it is "articulated in too specific terms, then the distinction between ends and means may be lost".

     [261]Unions NSW v New South Wales (2019) 264 CLR 595 at 657 [172].

     [262][2015] 3 SCR 485 at 498‑499 [28].

247. The term "privacy" in s 2A is used in a wide sense to include all intrusions by trespass and all of their consequences. The reference to the privacy of "individuals" cannot confine the purposes of ss 11 and 12, which include protection against "privacy" intrusions on property that is owned by a corporation. As Gordon J explains[263], the more specific purposes of ss 11 and 12, read with s 8, are the protection of privacy and dignity and the protection of property rights. The purposes of ss 11 and 12 should not be characterised in such specific terms as being to disincentivise farm trespass. That would confuse the purpose and the means of achieving it.

     [263]At [171].

     The structured proportionality enquiry

248. There was no dispute that the purposes of ss 11 and 12 of the Surveillance Devices Act, read with s 8, are legitimate, in the sense that it is no purpose of those provisions to burden the freedom of political communication. The issue is whether the legitimate purposes can justify the effect of those provisions – or, perhaps more accurately, the expected effect of those provisions[264] – in burdening the freedom of political communication.

     [264]Clubb v Edwards (2019) 267 CLR 171 at 334 [470].

249. Different views have been expressed in this Court concerning the party who bears the onus either of establishing a law's lack of proportionality or of justifying a law as proportionate[265]. But since the party supporting the law is likely to be the party with the most ready access to proof of the anticipated legal and practical effect of the law, the better view is that it is that party who must justify the burden once it is established[266].

     [265]See Unions NSW v New South Wales (2019) 264 CLR 595 at 650 [151], fn 230.

     [266]McCloy v New South Wales (2015) 257 CLR 178 at 201 [24]; Brown v Tasmania (2017) 261 CLR 328 at 370 [131]; Unions NSW v New South Wales (2019) 264 CLR 595 at 650 [151].

250. The legal exercise of assessing whether a burden on the freedom of political communication is justified should be transparent, principled, and structured. Otherwise, it could become, or could be seen to become, an exercise of weighing the burdening effect of a law against little more than a judge's idiosyncratic policy preferences. A structured proportionality approach, repeatedly employed by a majority of this Court[267], aims to avoid such problems by assessing whether the law is justified by asking (i) whether its anticipated effects are suitable or rationally connected to its legitimate purpose; (ii) whether there were alternative, "reasonably necessary", means of achieving the same object but with a less restrictive effect upon the freedom of political communication; and (iii) if the anticipated effects are suitable and reasonably necessary, whether they are adequate in the balance between the purpose to be achieved by the law and the extent of the burden imposed on the freedom.

     [267]McCloy v New South Wales (2015) 257 CLR 178; Brown v Tasmania (2017) 261 CLR 328; Clubb v Edwards (2019) 267 CLR 171; Unions NSW v New South Wales (2019) 264 CLR 595; Comcare v Banerji (2019) 267 CLR 373; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490; 391 ALR 188.

251. It has never been satisfactorily explained why, without any room for extra‑judicial policy preferences, a law that fails one of these three criteria for structured proportionality, when they are properly applied, would be consistent with the implied freedom of political communication. Nor has it ever been explained why the implied freedom should invalidate a law that is suitable, reasonably necessary to achieve its legitimate purpose and adequate in the balance. The lack of any acceptable answer to that challenge demonstrates the utility of an analysis based on structured proportionality.

252. The plaintiffs accepted that the purposes of ss 11 and 12 of the Surveillance Devices Act, read with s 8, are legitimate and that the provisions are suitable and rationally connected with those purposes. The two criteria upon which the plaintiffs required the State of New South Wales to justify the burden were whether the provisions are reasonably necessary and adequate in the balance.

     "Reasonable necessity"

253. In LibertyWorks Inc v The Commonwealth[268], I said that the test of reasonable necessity "remains capable of further development and refinement, including the manner in which it applies to different categories of case". Part of the difficulty is the label. If necessity is understood in the ordinary sense of "unavoidable", "compelled", or "indispensable", then the test for reasonable necessity is an oxymoron. Either a choice by Parliament is unavoidable or it is not. It cannot be "reasonably" unavoidable. The test of "reasonable necessity" is really one of reasonable choice, with recognition of the wide latitude of choice that must be afforded to Parliament in a system of representative democracy. Hence, an alternative choice that imposes a lesser burden on the freedom of political communication must be "obvious" or "compelling" such that it must be clearly expected to achieve the same purposes, to at least the same extent, and to do so with a significantly lesser burden[269].

     [268](2021) 95 ALJR 490 at 536 [202]; 391 ALR 188 at 242‑243.

     [269]See Monis v The Queen (2013) 249 CLR 92 at 214 [347]; Tajjour v New South Wales (2014) 254 CLR 508 at 550 [36]; McCloy v New South Wales (2015) 257 CLR 178 at 211 [58], 217 [81], 270 [258], 285‑286 [328]; Brown v Tasmania (2017) 261 CLR 328 at 371‑372 [139], 418‑419 [282]; Clubb v Edwards (2019) 267 CLR 171 at 186 [6], 262 [263], 269‑270 [277], 337‑338 [478]‑[480]; Comcare v Banerji (2019) 267 CLR 373 at 401 [35], 452‑453 [194]; Palmer v Western Australia (2021) 95 ALJR 229 at 286 [271]; 388 ALR 180 at 249; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490 at 509 [78], 536 [202]; 391 ALR 188 at 207, 243.

254. Where the burden on political communication is not great in either its depth or breadth[270] it will be easier to justify, as reasonably necessary, the means chosen by Parliament amongst the various alternative policy choices[271]. The smaller the burden on the freedom of political communication, the less likely it will be that an alternative would impose a significantly lesser burden.

     [270]Clubb v Edwards (2019) 267 CLR 171 at 337‑338 [480].

     [271]Clubb v Edwards (2019) 267 CLR 171 at 199 [64].

255. In the relevant application of ss 11 and 12 of the Surveillance Devices Act, read with s 8, the burden on the implied freedom of political communication is neither deep nor wide. It is not deep because the only political communication that it prohibits concerns records or reports about lawful activities obtained exclusively as a result of trespass. It is not broad because it extends only to the communication or publication by parties to a trespass contrary to s 8 of the Surveillance Devices Act. Indeed, the Attorney‑General for the State of Western Australia even submitted that the constitutional freedom of political communication should not extend at all to "the product of unlawful activity". Although that submission overreaches because the general law does not prohibit trespassers or those who are complicit in the trespass from publishing or communicating non‑confidential information, the Attorney‑General is correct to the extent that, in some circumstances, equity can respond by injunction against the trespasser to restrain or undo the continuing effects of a trespass[272].

     [272]Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502 at 523 [68], 539 [150], 549 [196], 559‑562 [248]‑[260]; 376 ALR 575 at 592, 613, 626, 640‑644.

256. The plaintiffs pointed to "alternative models" in laws of Victoria[273], the Northern Territory[274], South Australia[275], Western Australia[276], and Queensland[277]. None of those laws are obvious and compelling alternatives to ss 8, 11 and 12 of the Surveillance Devices Act which could be clearly expected to achieve the same purposes, to at least the same extent, and to do so with a significantly lesser burden.

     [273]Surveillance Devices Act 1999 (Vic).

     [274]Surveillance Devices Act 2007 (NT).

     [275]Surveillance Devices Act 2016 (SA).

     [276]Surveillance Devices Act 1998 (WA).

     [277]Invasion of Privacy Act 1971 (Qld).

257. In some respects, although not in others, the alternative models impose a burden on political communication that is deeper than that imposed by ss 8, 11 and 12 of the Surveillance Devices Act. For instance, the alternative models that are concerned with optical surveillance of activities all prohibit obtaining or publishing a record or report of a "private activity" from an optical surveillance device even in circumstances where the record or report was obtained lawfully[278].

     [278]Surveillance Devices Act 1999 (Vic), ss 7(1), 11(1) read with s 3(1) (definition of "private activity"); Surveillance Devices Act 2007 (NT), ss 12(1), 15(1) read with s 4 (definition of "private activity"); Surveillance Devices Act 2016 (SA), ss 5(1), 12(1) read with s 3(1) (definition of "private activity"); Surveillance Devices Act 1998 (WA), ss 6(1), 9(1) read with s 3(1) (definition of "private activity").

258. More fundamentally, the alternative models might not be expected to achieve the purposes of the protection of privacy and dignity and the protection of property rights to the same degree as the Surveillance Devices Act. The alternative models, to different degrees, permit exceptions to the offence including, in broad terms, where the communication or publication is: (i) to a media organisation, or by a media organisation and in the public interest, and the device was used in the public interest[279]; (ii) no more than is reasonably necessary in the public interest[280]; or (iii) authorised by a court order based on public interest grounds and no more than is reasonably necessary in the public interest[281], where the installation or use of the device was not unlawful[282].

     [279]Surveillance Devices Act 2016 (SA), s 10(2).

     [280]Surveillance Devices Act 1999 (Vic), s 11(2)(b)(i); Surveillance Devices Act 2007 (NT), s 15(2)(b)(i).

     [281]Surveillance Devices Act 1998 (WA), ss 9(2)(a)(viii), 9(3)(a)(i), 31(1).

     [282]eg Surveillance Devices Act 1998 (WA), s 25.

259. In each case, the exceptions in the alternative models might be expected to detract from the achievement of the legislative purposes of the protection of privacy and dignity and the protection of property rights. In Kadir v The Queen[283], this Court said that "[t]he undesirability of admitting evidence obtained in consequence of the deliberate unlawful conduct of a private 'activist' entity is the effect of curial approval, or even encouragement, of vigilantism". One unstated premise of ss 11 and 12 of the Surveillance Devices Act is that the communication and publication of information obtained in breach of s 8 will be easier to detect than conduct in breach of the primary prohibition upon installation and use of an optical surveillance device by a trespasser. Thus, as Rehnquist CJ said in the Supreme Court of the United States in his dissent in Bartnicki v Vopper[284], "Congress and the overwhelming majority of States reasonably have concluded that sanctioning the knowing disclosure of illegally intercepted communications will deter the initial interception itself, a crime which is extremely difficult to detect".

     [283](2020) 267 CLR 109 at 137 [48].

     [284](2001) 532 US 514 at 549.

260. Perhaps most fundamentally, the purposes of the alternative models are not the same as those of the Surveillance Devices Act. For instance, there is no mention of privacy in the general objects clause in the Victorian or Northern Territory legislation[285] and the Queensland legislation is concerned with the recording of conversations by listening devices and not with the recording of activities by optical surveillance devices[286].

     [285]Surveillance Devices Act 1999 (Vic), s 1; Surveillance Devices Act 2007 (NT), s 3.

     [286]Invasion of Privacy Act 1971 (Qld).

261. 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, although perhaps related, policy goals.

     Adequacy in the balance

262. In the absence of any constitutional restriction, it would be open to Parliament to weigh in the balance the protection of dignity, privacy, and property rights (including security of one's home), on the one hand, with freedom of political communication, on the other. The conclusion that it is not adequate in the balance for Parliament to reach a "reasonably necessary" outcome that might favour dignity, privacy, and security of property is to conclude that the small, incremental burden upon the implied freedom of political communication in the relevant circumstances is a constitutional trump card over dignity, privacy, and security of property. In a representative democracy without a Bill of Rights, that is a large claim.

263. Although a person's right to the peaceful possession of property should no longer be properly treated as being more fundamental than rights to bodily integrity or liberty[287], it remains a right of great importance. It would diminish the respect which the law affords to dignity, privacy, and the security of property to conclude that the Surveillance Devices Act is invalid in its application to trespassers, and those complicit in the trespass, who seek to take advantage of their trespass by communicating or publishing a record or report of lawful activities. And that diminished respect would be for the marginal benefit of eliminating only a small incursion upon the implied freedom of political communication, involving a narrow incremental development of the existing general law.

     [287]Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502 at 557 [239]; 376 ALR 575 at 637.

264. The reasons above would be sufficient to conclude that ss 11 and 12 of the Surveillance Devices Act, read with s 8, are adequate in the balance in their relevant application. But the balance is not even truly between the values of dignity, privacy, and security of property, on the one hand, and freedom of political communication, on the other. In the relevant application to trespassers and those complicit in the trespass, the protection of dignity, privacy, and security of property is itself a protection of freedom of political communication. An assault on the one can be an assault on the other. As Gageler J said in Smethurst v Commissioner of the Australian Federal Police[288], paraphrasing the State Trials report of Lord Camden's speech in Entick v Carrington[289], there is a "link between protection of personal property and protection of freedom of thought and political expression". Thus, as Kirby J said in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[290], the Tasmanian legislation empowering the issue of an injunction in the circumstances of that case[291] was not merely compatible with the representative democracy created by the Constitution, it was "a feature of that democracy".

     [288](2020) 94 ALJR 502 at 534 [124]; 376 ALR 575 at 606.

     [289](1765) 19 St Tr 1029.

     [290](2001) 208 CLR 199 at 282 [200].

     [291]Supreme Court Civil Procedure Act 1932 (Tas), s 11(12).

     Non‑human animal cruelty and the answers to the questions in the special case

265. For many people, the motivations of the plaintiffs, which include elimination of cruelty to non‑human animals, might be laudable. And one of the most compelling ways in which the plaintiffs can agitate for policy and social change in this area is publicising the type of shocking images exhibited in this case. But no matter how worthy that ultimate goal might be, it is not open in a representative democracy for this Court to deny the Parliament of New South Wales the ability to sanction trespassers and those complicit in the trespass in order to protect dignity, privacy, and security of property where the Parliament does so at the cost of only a small incursion upon freedom of political communication.

266. Further, the answers given to the questions concerning freedom of political communication that are before this Court are neutral in their effect on protection of non‑human animals. A search for truth in the marketplace of ideas cannot censor communication according to its content. A strong protection of freedom of speech has therefore been used in some cases in the United States with an effect that might positively erode the protection of non‑human animals. In United States v Stevens[292], a majority of the Supreme Court of the United States considered laws that criminalised the commercial creation, sale, or possession of visual or auditory depictions "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed". The legislative background included evidence of a market for "crush videos" which depicted animals being crushed to death[293]. Despite the abhorrent nature of the content, the law was presumptively invalid because it proscribed speech based on content[294]. As Alito J said in dissent, the Supreme Court struck down "in its entirety a valuable statute ... that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty"[295]. On the other hand, it has been suggested that the "same right to free speech would also prevent [Congress] banning depictions of cruelty to animals by hunters or food producers"[296].

     [292](2010) 559 US 460. Cf United States v Richards (2014) 755 F 3d 269, from which an application for certiorari was refused: Richards v United States (2015) 135 S Ct 1547.

     [293](2010) 559 US 460 at 465‑466.

     [294](2010) 559 US 460 at 468.

     [295](2010) 559 US 460 at 482.

     [296]Barnett and Gans, Guilty Pigs (2022) at 274.

267. In a representative democracy, the best protection for non‑human animals against cruelty is not the implied freedom of political communication. Putting to one side the prospect of any significant development of the common law, the best protection for non‑human animals must come from Parliament. In New South Wales, one step has been the Prevention of Cruelty to Animals Act 1979 (NSW). That Act includes powers for inspectors to enter land without consent of the occupier in circumstances including the examination of an animal based on a suspicion, on reasonable grounds, that a person has committed an act of cruelty upon an animal, which includes unreasonable infliction of pain[297].

     [297]Prevention of Cruelty to Animals Act 1979 (NSW), s 24E(1), s 24I(a) read with ss 5(1) and 4(2).

268. The questions in the special case, formulated by reference to accurate language, should be answered as follows:

     Question 1. Does s 11 of the Surveillance Devices Act impermissibly burden the implied freedom of political communication?

     Answer: Section 11 does not impermissibly burden the implied freedom of political communication in its application to the communication or publication by a person of a record or report 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 s 8 of the Surveillance Devices Act. It is unnecessary to determine whether s 11 burdens the implied freedom of political communication in other applications.

     Question 2. If "yes" to Question 1, is s 11 of the Surveillance Devices Act [able to be partially disapplied] in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?

     Answer: If s 11 were invalid in some of its operations, it could be partially disapplied to the extent of that invalidity. Otherwise, this question is unnecessary to answer.

     Question 3. Does s 12 of the Surveillance Devices Act impermissibly burden the implied freedom of political communication?

     Answer: Section 12 does not impermissibly burden the implied freedom of political communication in its application to 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 being obtained exclusively by breach of s 8 of the Surveillance Devices Act. It is unnecessary to determine whether s 12 burdens the implied freedom of political communication in other applications.

     Question 4. If "yes" to Question 3, is s 12 of the Surveillance Devices Act [able to be partially disapplied] in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?

     Answer: If s 12 were invalid in some of its operations, it could be partially disapplied to the extent of that invalidity. Otherwise, this question is unnecessary to answer.

     Question 5. Who should pay costs?

     Answer: The plaintiffs should pay the defendant's costs.

269. STEWARD J. I respectfully and generally agree with the reasons of Kiefel CJ and Keane J as well as those of Edelman J. In the circumstances of this case, ss 11 and 12 of the Surveillance Devices Act 2007 (NSW) are valid laws. I agree with the answers proposed by Edelman J to the questions posed by the Amended Special Case.

270. In this case, and on the assumption that the implied freedom of political communication may fetter the legislative power of a State[298], the justification for ss 11 and 12 is also buttressed by the presence of legislation in New South Wales designed to protect animals from cruelty, such as the Prevention of Cruelty to Animals Act 1979 (NSW) ("the POCA Act") and the Companion Animals Act 1998 (NSW). Relevantly, inspectors in New South Wales have the power, in defined circumstances, to enter land to prevent cruelty to animals (s 24E of the POCA Act), to seek search warrants to enter and search land (s 24F of the POCA Act), to examine an animal (s 24I of the POCA Act), and to give a person a written notice requiring that person to take specified action in relation to an affected animal to avoid any further contravention (s 24N of the POCA Act). That legislation provides context legitimately to be considered in assessing the legislative choices reflected in ss 11 and 12.

     [298]cf Twomey, "The Application of the Implied Freedom of Political Communication to State Electoral Funding Laws" (2012) 35 University of New South Wales Law Journal 625 at 626. See also LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490 at 554-556 [298]-[304]; 391 ALR 188 at 267-269.

271. GLEESON J.   I respectfully agree with the principles stated by Kiefel CJ and Keane J concerning the requirement for justification of a statutory provision having the effect of burdening the implied freedom of political communication, and the structured proportionality analysis by which such a statutory provision may be justified.

272. Otherwise, I agree with Gageler J as to the scope of the question for judicial determination. The general principle, stated in Knight v Victoria[299], is that a party who seeks to challenge the constitutional validity of a statutory provision will generally be confined to advancing grounds which bear upon the provision's validity "in its application to that party"[300]. The general principle confines a party to challenging provisions that have some operation in relation to that party[301], and to grounds of challenge that are not merely hypothetical[302]. Complicity in any contravention of s 8 of the Surveillance Devices Act 2007 (NSW) that led to a contravention of ss 11 and 12 is not an element of the offences stated in ss 11 and 12. For the reasons given by Gageler J, Farm Transparency's past complicity in a contravention of s 8 does not provide a basis for confining the enquiry in this special case to whether the constraints purportedly imposed by ss 11 and 12 are valid in the narrow circumstance that the person said to contravene either of those provisions was complicit in the contravention of s 8. On the facts of Farm Transparency's pattern of activities presented in the special case, the question that falls for determination is a broader one. It is whether ss 11 and 12 validly operate to prohibit the possession, communication and publication of matter generated in contravention of s 8.

     [299](2017) 261 CLR 306.

     [300]Knight (2017) 261 CLR 306 at 325 [33].

     [301]The Real Estate Institute of NSW v Blair (1946) 73 CLR 213 at 227.

     [302]cf Knight (2017) 261 CLR 306 at 324-325 [31]-[33].

273. Gageler J's reasons sufficiently explain why the prohibitions in ss 11 and 12 infringe the constitutional guarantee of political communication by lacking an adequate balance between the benefit sought to be achieved by the provisions and their adverse effect on the implied freedom. I agree with his Honour as to the proper construction of ss 11 and 12 consequent upon the conclusion that the provisions infringe the constitutional guarantee. Accordingly, I agree with his Honour's proposed answers to the questions in the special case.