Blanket bans on secret recordings are an affront to freedom. Fortunately, animal rights activists are doing Australians a favour by challenging these restrictions.
Don’t be fooled by the reporting, the case of Farm Transparency International Ltd & Anor v. State of New South Wales is about more than merely ‘ag-gag’ laws that prevent the filming of abuses of animals – though this case would still be a worthy court challenge even if it was.
No, the law being tested is the Surveillance Devices Act 2007 (NSW). This law is a blanket law that prohibits filming or recording on private property without the owner’s knowledge or consent. It also prohibits the publishing of private conversations. Significantly, most other states and territories have exemptions carved out in similar laws on public interest grounds, whereas New South Wales does not.
Advocates for this law (the government) say that it protects privacy by preventing citizens from going around recording each other. That it does, but it also provides ample provisions to allow law enforcement agencies to do what private citizens can’t.
Farmers believing the hype that the success of this court case will grant a free pass to farm invaders, remain in favour of the surveillance law. However, there are all manner of laws already on the books to prevent people trespassing that farm invaders could be charged with – none of which are being challenged in this case.
The plaintiff, Farm Transparency International Ltd, is bringing this claim because it prevents the filming of (perceived) animal rights abuses taken while trespassing on private property. People’s feelings about farm invaders are not the point. As the plaintiff has explained, whether they are ‘admirable activists, or vulgar vigilantes, or something in between, is irrelevant’. The principle is far broader than the actions of these particular animal rights activists.
The issue, in this case, is whether the New South Wales law that enforces a blanket ban on recording on private property puts a too high burden on freedom of speech (actually, it is the Australian Constitution, so the correct terminology is ‘freedom of political communication’).
If the challenge is successful, the overturning of this law could protect others when filming perceived injustices and blowing the whistle on them.
Animal rights activists have done a lot for freedom of political communication constitutional jurisprudence in this country.
The case that led to the ‘discovery’ of this implied freedom involved putting dead ducks on the steps of parliament to protest duck hunting. In a landmark decision, the High Court deemed the action to be protected by the Constitution, saying that there is an implied right to freedom of political communication.
With any luck, these litigious animal rights activists will have the same effect as Levy, and expand the principle of freedom of political communication to the right to film as it is invaluable to one’s ability to draw attention to those things that are against one’s conscience.
This is significant in the era of Covid where there have been attempts to prevent the filming of protests and arrests of citizen journalists and documentary makers who have been reporting on the government’s response to Covid and the protests against them. If successful, this current court case could green-light a challenge to the various ways citizen journalists have been silenced when trying to report, particularly in Victoria, over the past (almost) two years.
This law would also mean that an equivalent of Project Veritas could never happen in the state of New South Wales. Controversial though releasing footage from hidden cameras and leaked recordings may be, there is no denying that it has exposed important information. However, if this challenge is successful, it may pave the way for undercover whistle-blowers to lift the lid on the happenings in organisations in Australia in much the same way as what Project Veritas does in the US.
There are many flaws to our implied freedom of political communication. Ideally, we would have protection for freedom of speech as robust as the First Amendment in the USA. But it is all we have, so let’s hope the High Court of Australia creates a precedent to permit these animal rights activists to film, because this is something all will benefit from. People should be able to film all manner of things that go against their conscience and alert the public to their occurrence.
Despite the focus of the media on this challenge being about ‘ag-gag’ laws, this court challenge has a far more significant principle at play – freedom of conscience.
Dara Macdonald is a lawyer and founder of a new organisation that aims to create a culture of freedom, All Minus One.
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