In a joint judgment, Chief Justice Susan Kiefel and Justice Patrick Keane said discussions of animal welfare are a “legitimate matter of governmental and political concern and a matter in respect of which persons may seek to influence government” but the laws did not amount to an impermissible restriction on the implied freedom.
They said the provisions furthered the legitimate purpose of preventing or deterring “trespassory conduct”.
While the majority of the court answered a narrower question about the validity of the laws, some judges considered how the law might apply to media outlets.
Justice Michelle Gordon said the provisions would “prevent, for example, media outlets communicating about footage that reveals unlawful conduct taking place at an abattoir or even unlawful conduct engaged in by the Government” if it was given to them by a trespasser. To that extent, Gordon said, the laws would be invalid.
In a dissenting judgment, Justice Stephen Gageler said the laws operated indiscriminately and imposed an impermissible burden on the implied freedom of political communication. Justice Jacqueline Gleeson agreed.
Justice James Edelman said Delforce had been “involved in many incidents of covered recording of farming activities involving considerable suffering of non-human animals”, and some of the images tendered in court “reveal shocking cruelty to non-human animals”. However, it had not been established in court that the practices were unlawful.
It meant the challenge in this case was confined to circumstances in which the Farm Transparency Project had published footage of lawful activities. Justice Simon Steward agreed the laws were valid.
Edelman said the court was not asked to, and did not, consider the wider application of the laws, such as a newspaper publishing a smartphone video taken by a gatecrasher at a private function that recorded government MPs discussing “an unlawful enterprise”.
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