NSW farm trespass laws upheld by High Court
In 2022 the High Court upheld the NSW farm trespass laws, also known as the “ag-gag laws” that make it a criminal offence for animal welfare advocates and others to publish covert video footage taken as a result of trespassing on private agricultural property.
Challenge to constitutionality of farm trespass laws
Animal protection group Farm Transparency Project and its director Christopher Delforce had challenged the constitutional validity of the NSW Surveillance Devices Act 2007, which makes it an offence to publish or possess covert footage taken on agricultural private property.
The animal welfare group has sought to expose animal cruelty in the past by trespassing on agricultural property and secretly installing hidden cameras. (Please see Should slaughterhouses have glass walls? The campaign for greater farm transparency goes to the High Court, The Conversation, 8 July 2021.)
The group told the High Court the NSW law interfered with the activists’ implied right under the constitution to freedom of political communication. (Please see Farm Transparency International Ltd v New South Wales  HCA 23.)
Use of farm trespass laws to prevent animal advocates from filming agricultural facilities
Farm trespass laws are used to target animal advocates and whistleblowers who strive to expose agricultural practices that are unnecessarily cruel to animals.
NSW and Commonwealth laws enacted in 2019 impose up to five-year jail terms for trespassers who secretly record agricultural activity. (Please see the NSW Right to Farm Act 2019 and the Commonwealth Criminal Code Amendment (Agricultural Protection) Act 2019.)
The penalties were introduced after animal cruelty was exposed by covert footage in the live sheep and cattle export, greyhound racing and horse racing industries.
There is high emotion on both sides. The National Farmers’ Federation argued that an online map of farms produced by Mr Delforce in 2019 was a huge breach of privacy and encouraged trespass. (Please see Animal rights group creates online map showing farm locations and contact details, ABC News, 21 January 2019.)
Implied freedom of communication in the constitution
Australia’s constitution does not explicitly protect freedom of expression, but in various decisions the High Court has determined that in the structure of the constitution there is an implied freedom of communication in relation to political and government matters. (Please see Freedom of information, opinion and expression, Australian Human Rights Commission.)
Farm Transparency Project argued the NSW Act prevents their efforts to expose animal cruelty and abuse, a right they believe they have under this implied freedom in the constitution.
The group argued the law also hinders media outlets from using covert footage showing cruelty at abattoirs and farms, even though the videos might expose breaches of industry rules and animal cruelty laws.
Argument for privacy and safety used to justify farm trespass laws
The NSW government argued the laws were reasonable and necessary to protect farmers’ privacy and safety. The NSW law does not allow any public interest exemption.
The High Court found the relevant sections of the NSW Act “achieved an adequate balance between the benefit they sought to achieve and the adverse effect on the implied freedom”.
Laws do not apply to lawful visitors or employees
The decision confined its focus to trespassers who publish footage of “lawful activity” carried out on private property, and did not consider cases which showed unlawful activity.
The High Court ruled the Act does not apply to lawful visitors or employees of a property who make a secret recording of activities.
Chief Justice Susan Kiefel and Justice Patrick Keane said in a joint judgment that animal welfare was a legitimate matter of political concern, but the NSW Act did not restrict the implied freedom in the constitution. They said the laws legitimately deter trespassory conduct and protect privacy.