In Farm Transparency International Ltd & Anor v State of New South Wales [2022] HCA 23 the High Court has addressed whether ss 11 and 12 of the Surveillance Devices Act 2007 (NSW) ("the SD Act") impermissibly burdened the freedom of political communication implied by the Constitution and were thus invalid. Part 2 of the Act regulates installation, use and maintenance of surveillance devices. Section 8 prohibits the knowing installation, use and maintenance of optical surveillance devices on or within premises to record visually or to observe the carrying on of an activity if the installation, use or maintenance of the device involves trespass to the premises. Sections 11 and 12 prohibit the communication or publication of a record or report, and the possession of a record, of the carrying on of an activity obtained as a direct or indirect result of, relevantly, the use of an optical surveillance device in contravention of s 8.
Farm Transparency International, a not-for-profit charity, had advocated political and legal changes to animal agricultural practices and animal welfare standards regarding farming and slaughtering practices. In an echo of Lenah Game Meats it had published photographs, videos and audio-visual recordings of animal agricultural practices in New South Wales. The second plaintiff, a director of the Farm Transparency International, had obtained recordings of the farming or slaughter of animals through purported acts of trespass contrary to s 8 of the SD Act.
The plaintiffs argued that ss 11 and 12 of the Act impermissibly burdened their ability to publish information that showed animal cruelty practices. The special case was presented on the basis that the activities recorded, albeit cruel, were not established to be unlawful.
The High Court has held that ss 11 and 12 of the Act did not impermissibly burden the implied freedom in relation to communication or publication by a person of a record or report, or the possession by a person of a record, of the carrying on of a lawful activity, at least where the person was complicit in the record or report being obtained exclusively by breach of s 8.
The Court stated it was otherwise unnecessary to determine whether ss 11 and 12 burdened the implied freedom in other applications. With reference to the restraints which the common law, equity and statute law already impose on the liberty of political communication, ss 11 and 12 imposed an incremental burden on a person's ability to publish records of lawful activities obtained surreptitiously and by conduct which amounted to trespass. The provisions had a legitimate purpose of the protection of privacy. The statutory schemes of other Australian jurisdictions were not obvious and compelling alternatives, as they did not pursue the same purpose and were broader in application. Sections 11 and 12 achieved an adequate balance between the benefit they sought to achieve and the adverse effect on the implied freedom.
Edelman J states
What this case is not about
193 A concerned member of the public, while present at a political event on private premises without invitation, overhears a conversation between senior members of the Government. The senior members of the Government are discussing their participation in an unlawful enterprise involving wiretapping of Opposition premises, and using the Australian Taxation Office and the Australian Secret Intelligence Service to target political opponents. The concerned member of the public uses a smartphone to make an audio visual recording of the conversation and provides the recording to a journalist at a national newspaper. The journalist and the editor of the newspaper are aware that the conversation was unlawfully recorded but they want to publish the details to inform the public of these matters of enormous political importance. Even if they cannot publish the information, they want to communicate it to the Australian Federal Police.
194 In these hypothetical circumstances, s 11 of the Surveillance Devices Act 2007 (NSW), read with s 8, prohibits the journalist or editor from publishing or communicating the information, with penalties of up to $11,000 and five years' imprisonment . Section 12 prohibits the journalist or editor from even possessing the recording. Would the application of ss 11 or 12 of the Surveillance Devices Act to such circumstances demonstrate that those provisions contravene the implied freedom of political communication? Would it make a difference if the recording also exposed the identities of Australian intelligence operatives whose lives would be threatened by any communication or publication of the information?
195 On the one hand, in these hypothetical circumstances the Surveillance Devices Act could suppress communication in this country of issues that, in other countries, have been fundamental to government or political matters. On the other hand, an unrestrained freedom may promote an approach that asks: "Why send a reporter to put a foot in the front door when the publisher can be confident that a trespasser with an axe to grind or a profit to be made will be only too willing to break and enter through a back window?"
196 The point of these hypothetical examples is to illustrate the vast, unexplored breadth of the plaintiffs' challenge in this special case, extending to circumstances far removed from the factual substratum of this case. The plaintiffs' challenge to ss 11 and 12 of the Surveillance Devices Act, on the basis that those sections contravene the implied freedom of political communication in the Constitution, involved no submissions on such hypothetical scenarios or anything like them. Legal issues and factual nuances related to any such hypothetical scenarios were not explored. This Court should be very wary before adjudicating on a broad basis that extends over all such hypothetical cases.
What this case is about
197 I gratefully adopt the description of the circumstances of this special case set out in the reasons of Kiefel CJ and Keane J. It is important to emphasise three features of the special case to demonstrate the issues that properly arise for decision.
198 First, the facts of the special case are concerned only with the operation of ss 11 and 12 of the Surveillance Devices Act based upon a contravention of s 8. The facts of the special case do not raise any issue concerning the operation of ss 11 and 12 based upon a contravention of ss 7, 9 or 10, which prohibit the installation, use and maintenance of a listening device, a tracking device, or a data surveillance device.
199 The second feature of the facts of the special case is that they concern only the communication or publication of unlawfully obtained information by trespassers and those complicit in the trespass under s 8 of the Surveillance Devices Act. The facts do not concern third party recipients of information such as journalists or editors, or any other third parties who receive the information with or without knowledge of the unlawful manner in which it was obtained. In that respect, the circumstances of this case are very different from those in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd , where it was not alleged that the appellant broadcaster "was implicated in or privy to the trespasses upon the premises" or "knowing[ly] participat[ed] ... in what is alleged to have been the relevant wrongdoing" .
200 The goals of the first plaintiff, Farm Transparency International Ltd, and the second plaintiff, Mr Delforce, as a director of the first plaintiff, include educating the public about cruelty to non human animals and advocating for law reform, including by providing evidence and reporting on farming practices. Mr Delforce has dedicated his life to "working towards alleviating the suffering of animals through public education and efforts to change the law". He has been a director of Farm Transparency since its incorporation and an officer of its predecessor corporation since 2014.
201 Mr Delforce gives numerous examples of circumstances in which Farm Transparency or its predecessor corporation of which he was an officer have published audio visual footage of animal suffering. He speaks about images and footage from 21 piggeries, a turkey farm, a duck farm, a turkey abattoir, a cage egg facility, two "farm" eggs facilities, and two "pet food" facilities. In every instance, Mr Delforce was the person who took the footage or was complicit in, or aware of, the process of taking the footage or the installing of cameras on the premises.
202 On each of the numerous occasions when Mr Delforce published his recordings of non human animal cruelty to which he refers in his affidavit, Mr Delforce used Farm Transparency or its predecessor corporation, and their websites, as a vehicle to publish the photographs and audio visual footage of non human animal cruelty. Farm Transparency wishes to continue to publish information, including video recordings, that show non human animal cruelty practices without the burden imposed by the Surveillance Devices Act.
203 To the extent that the special case discloses any trespasses by Mr Delforce in contravention of s 8 of the Surveillance Devices Act, the natural inference is that those trespasses occurred as part of a common design, or sharing a common purpose, with Farm Transparency, of which he has always been a director, in order to obtain recordings of cruelty to non human animals for publication by Farm Transparency. Even if Mr Delforce's actions were not, and will not be, undertaken as an agent of Farm Transparency or able to give rise to joint liability based on a common purpose , a possible inference from the material in the special case is that Farm Transparency is, or will likely be, an accessory before the fact and potentially liable for an offence under s 8. At the least, in the circumstances of past contraventions described by Mr Delforce, Farm Transparency or its predecessor corporation would be, to use the language of Gleeson CJ, "complicit" in any trespass under s 8 .
204 The third feature of the facts of the special case is that there has been no finding of any court, nor was there any submission either in writing or orally, that established the unlawfulness of any activity depicted in a record that was obtained or that might be obtained. No law was identified in submissions by the plaintiffs that might potentially have made such activities unlawful and the State of New South Wales thus had no opportunity to address the nature or scope of any unlawful activity on private property that might be disclosed by the plaintiffs.
205 Mr Delforce has been involved in many incidents of covert recording of farming activities involving considerable suffering of non human animals. Some images from such recordings were exhibited to the affidavit of Mr Delforce, which was part of the special case. They reveal shocking cruelty to non human animals. They may very well have been unlawful as well as immoral. But even apart from the lack of submissions about the basis for any illegality, the special case does not assert that any of the recorded activities had been found to be unlawful.
206 Many of the recordings made by Mr Delforce were not referred to the police or to the Royal Society for the Prevention of Cruelty to Animals (RSPCA) because he considered that the practices, whilst cruel, were not illegal. On the occasions that Mr Delforce did refer recordings to the police or to the RSPCA, there was no successful prosecution. Therefore, on the facts stated and in light of the manner in which the argument developed, this special case was presented on the basis that the activities, albeit undeniably cruel, were not established to be unlawful.
207 The circumstances of the special case therefore raise the question of whether the implied freedom of political communication is contravened by the operation of ss 8, 11 and 12 of the Surveillance Devices Act in prohibiting trespassers and those complicit in a trespass from publishing or communicating information exclusively obtained from that trespass and which does not reveal unlawful conduct. The answer is that ss 8, 11 and 12 of the Surveillance Devices Act are not invalid in their application to such general circumstances
Edelman J subsequently states
Extending breach of confidence?
233 In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd , 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.
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 . Gleeson CJ said that the foundation of much of the privacy protection afforded by the action for breach of confidence is "human dignity" . 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 .
235 A potentially broader approach to breach of confidence was taken by Gummow and Hayne JJ, with whom Gaudron J relevantly agreed , 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" but denied the respondent the ability to rely upon those circumstances because it was a corporation rather than a natural person .
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" . His Honour only allowed the appeal on the basis that an injunction should have been refused as a matter of discretion . Callinan J took the least restrictive approach and would have upheld the restraint and dismissed the appeal .
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 and potentially even to "innocent" third parties , 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 . And others have expressly, and carefully, avoided the controversy of "the extent to which actual knowledge is necessary" beyond circumstances of wilful blindness . 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 .
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" . As Gibbs CJ observed in A v Hayden , 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" . 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 . Even the foundations of the defence, based upon a case that has been reported in significantly different terms , have been questioned .
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 . 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.
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.
Gageler J in dissent states
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 . 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 – 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.
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 .
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 :
"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."
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 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.
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" .
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 . 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 . Explained in the language of Kirby J : "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."
76 Lange's insight, first elucidated in Australian Capital Television Pty Ltd v The Commonwealth and Nationwide News Pty Ltd v Wills , 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" . An aspect of that systemic risk is that "political communications unhelpful or inconvenient or uninteresting to a current majority might be unduly impeded" .
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 . 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.
78 Lange postulates, and Brown v Tasmania 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" . 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" . 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" .
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" . That marketplace is foundational to a "society organised under and controlled by law" . 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.
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'" . The internet and the smartphone have only reinforced the persuasive power of visual imagery.
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" .
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 . There the recorded facts were as follows : "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."
84 The position of the ABC was described by Gleeson CJ : "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?"
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" .
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 . 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, had been so regulated since at least 1935 , and remains so regulated .
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" .
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 , emphasised by Gleeson CJ in Lenah Game Meats itself , and recognised in contemporary academic writings on the potential development of a tort of privacy in Australia , 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 . 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 . 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.
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 , Western Australia and the Northern Territory 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 .
