Australian Broadcasting Corporation v SAWA Pty Ltd - Right to free speech and publication Case Notes
April 19, 2023
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Video Surveillance of Alleged Animal Cruelty
In 2012 an employee of SAWA Pty Ltd secretly videoed activities involving what they believed to be potential animal cruelty offenses occurring on a cattle station in Western Australia. The videos showed the de-horning of cattle and one animal being put down. After providing the videos to the RSPCA, SAWA and one of their directors were charged with eight animal cruelty offenses.
The Magistrates Court determined that the videos were in breach of the Surveillance Devices Act because they were secret recordings of private activities and conversations, and would usually not be allowed to be shown as evidence. However, in the circumstances of the case the Court decided that the videos would be admitted as evidence despite being in breach of the Act, and they were played to the open court during the trial.
SAWA and the director were subsequently acquitted of seven of the charges and convicted of one; they appealed that conviction and were also acquitted.
ABC’s Application to Publish the Videos
After the appeal, the ABC applied to the Magistrates Court to gain a copy of the videos that had been shown as evidence. The Court approved the application. SAWA became aware that the ABC had a copy of the videos and began legal action to prevent the ABC from publishing the videos. The ABC then applied to the Court to gain permission to publish the videos.
The Surveillance Devices Act provides that recordings of private conversations and activities cannot be published if they came to a person’s knowledge as a result of covert or secret recording, except when a judge is convinced that publication should occur in order to protect or further the public interest.
The ABC argued that publishing the videos would further and protect the public interest by allowing for free communication and debate, especially surrounding the proposed changes to the Animal Welfare Act that are currently being discussed in Parliament. The ABC also claimed that publishing the videos would assist in preventing inhumane treatment of animals and would encourage general debate about animal welfare laws and standard farming practices in different states. ABC’s application was refused, and they appealed this decision.
Freedom of Speech
On the appeal the ABC argued, among other things, that the original judge made an error in the decision by not giving consideration to a legal principle that basically states that legislation should not be interpreted in a way that restricts our basic freedoms and rights. The ABC believed that the judge had to give consideration to the public’s implied right to free speech and that this right should have taken priority over other considerations. The Appeal Court disagreed, explaining that the purpose of the Surveillance Devices Act is to specifically protect against this type of publication and to prioritise free speech would go against the Act’s purpose.
Further, the Appeal Court found that the ABC did not necessarily need to publish the videos in order to achieve the purpose of protecting and furthering public interest. ABC could very easily report on the events that occurred in the video and encourage debate around changes to Animal Welfare law without the videos being shown. The ABC disagreed on this, arguing that images are powerful in informing public understanding of animal cruelty and animal distress and could not be adequately replaced by descriptions. The Court reasoned that the recordings would not positively enhance public understanding or debate on the issues to any significant degree.
Uncontrolled Publication
The Court also discussed concerns with allowing covertly recorded videos to be published in what is arguably an uncontrollable manner.
The ABC’s application to publish the videos laid out the purposes for which they believed publication should occur, as discussed above. Even if these purposes were considered valid, the Appeal Court expressed concern that the inability to control republication of the videos would cause damage to the privacy protections that the Act was designed to provide to the public.
The ABC may have followed the rules of how and why it would be given permission to publish the videos, but there would be no way to prevent others from republishing the videos for whatever purposes they wished. This would potentially destroy the protections that the Act was designed to provide. Republication via social media is common and it would be impossible for a Court to enforce any limitations on how or why the videos would be republished.
Conclusion
The right to free speech is seen by most Australians as a common law right with far-reaching implications. While Australian Courts have accepted that an implied right to freedom of political communication exists in our Constitution, that right is not one without limitations.
As this case has demonstrated, the Courts respect that the right exists and that it serves to further the public interest in understanding and engaging with political debate. However, legislation that also stands to serve the public interest in some manner – in this case privacy protection – should not be overlooked in order to extend that right beyond what is necessary.
Reporters have a variety of opportunities to engage the public in political debate and enhance public understanding, upholding the implied right to freedom of political communication. Publishing videos is not always necessary in order for that right to prevail and should not do so when it directly goes against the protections extended to the public by the Surveillance Devices Act.
For any questions or further information on the above please contact Philip Brunner on 0427 783 168 or email: phil@bailiwicklegal.com.au
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