Farm Transparency International Ltd v New South Wales [2022] HCA 23

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

FARM TRANSPARENCY INTERNATIONAL

LTD & ANOR PLAINTIFFS

AND

STATE OF NEW SOUTH WALES DEFENDANT

Farm Transparency International Ltd v New South Wales

[2022] HCA 23

Date of Hearing: 10 & 11 February 2022

Date of Judgment: 10 August 2022

S83/2021

ORDER

Questions 2 and 4 of the questions of law stated for the opinion of the Full Court in the amended special case filed on 6 October 2021 be amended, and the questions stated in the amended special case (as further amended) be answered as follows:

1. Does section 11 of the Surveillance Devices Act 2007 (NSW) impermissibly burden the implied freedom of political communication?

Answer, "Section 11 does not impermissibly burden the implied freedom of political communication in its application to the communication or publication by a person of a record or report 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 of the Surveillance Devices Act. It is unnecessary to determine whether s 11 burdens the implied freedom of political communication in other applications".

2. If "yes" to Question 1, is s 11 of the Surveillance Devices Act 2007 (NSW) able to be partially disapplied in respect of its operation upon political communication pursuant to s 31(2) of the Interpretation Act 1987 (NSW)?

Answer, "If s 11 were invalid in some of its operations, it could be partially disapplied to the extent of that invalidity. Otherwise, this question is unnecessary to answer".

3. Does section 12 of the Surveillance Devices Act 2007 (NSW) impermissibly burden the implied freedom of political communication?

Answer, "Section 12 does not impermissibly burden the implied freedom of political communication in its application to 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 being obtained exclusively by breach of s 8 of the Surveillance Devices Act. It is unnecessary to determine whether s 12 burdens the implied freedom of political communication in other applications".