Australian Broadcasting Corporation v SAWA Pty Ltd - Right to free speech and publication Case Notes
Phil Brunner • Apr 03, 2018
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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The Human Rights Commission may take action against employers who fail to actively eliminate sexual harassment, discrimination and victimisation in the workplace, as part of a positive duty reform. While the reform itself was introduced under the Sex Discrimination Act in 2022, a change was put in place last December - and every employer, including those in the agricultural sector, is affected. This change has provided the commission with new powers to investigate and enforce compliance with positive duty and investigate organisations or businesses where it "reasonably suspects" non-compliance. What does this mean for shearing contractors, sheep producers and other primary producers? Speaking at the WA Shearing Industry Association (WASIA) general meeting last month, Bailiwick Legal solicitor Matilda Lloyd said the enforcement power involved inquiries and investigations similar to WorkSafe. She said a complaint did not have to be made for an inspector from the commission to visit and look over a workplace, and see if there is any kind of sexual harassment occurring. "The commission looks at policies and procedures, and essentially you need to be able to demonstrate that you're compliant with this positive duty. "When you think about it in the context of a shearing shed, it is the safety checklist you have in place for when people enter the shed. "Those are the things you need to consider with sexual harassment as well." Ms Lloyd said the commissioner never had the power to conduct an investigation before and, as such, practically how it was going to work was an unknown. "We don't know whether they're going to be coming out and doing regular inspections, what those inspections are going to look like in terms of time or how thorough they are going to be, " sh e said. "They need to be thought of the same way as a WorkSafe investigation, whereby it could happen at any point whether a complaint is made or not. "Investigators will expect employers to show that they are actively trying to eliminate this form of unlawful conduct." If an inquiry occurs, what will happen? If an employer wasn't taking the correct measures to stop sexual harassment, discrimination and victimisation from occurring, they could be issued a compliance notice. Ms Lloyd said if the notice wasn't adhered to and an inspector returned, they could apply to the Federal Court to have that positive duty enforced. What is positive duty? Ms Lloyd said a positive duty was a legal obligation on an employer or person conducting a business or undertaking to take reasonable and proportionate measures to eliminate unlawful behaviours in the context of work, workplaces and working relationships. In the case of shearing contractors, sheep producers and other primary producers, she said that obligation was on the employer and applied to all staff, workers, contractors, customers and people entering, for example, a shearing shed. She said the obligation was "very broad" and applied right across the board. "Enforcing positive duty is pretty straightforward in terms of the employer, but when we look at the other parties involved it is extensive, " Ms Lloyd said. "When we are talking about sexual harassment in the workplace we are talking in the shed and in a vehicle on the way to work or another shed. "It is also offsite, so if you are having work drinks at the quarters or wherever afterwards - that's also a workplace within the definitions of the act. "The obligation applies across the board in all of these circumstances. "And also applies to visitors, so if you have farmers and they bring their wives, it is anyone coming into that shed or environment." In the context of positive duty, what do contractors need to do? Firstly, employers need to understand what sexual harassment, sex-based harassment, discrimination and victimisation is. Ms Lloyd said employers were responsible for leading their team, so it was important to understand what the laws were and how they affected not only them, but their employees. "When we talk about sexual harassment we talk about unwelcome conduct that is of a sexual nature or requests for sexual favours, touching, requesting dates and so forth," she said. "Whereas sex-based harassment is harassment that is targeted at a particular sex. "This could be making sexist comments about a woman because she's a woman or making sexist comments about a man because he's a man. "Then victimisation is about targeting someone because they've made a complaint." Ms Lloyd said a conversation then needed to be had to educate employees, whether that be face-to-face, by Whatsapp or having it displayed in the shed. She said there were resources and guidelines available through the Human Rights Commission, which helped with this. "Have that conversation - as an employer understand what sexual harassment is but then talk to your employees and be serious about educating your employees, " Ms Lloyd said. "It is about actually having that conversation and then thinking about what material can be given to them. "The whole point is to make it easy, so people understand. "Then it goes into training and support - is there someone in your team people can talk to?" The seven standards The commission has released guidelines for complying with the positive duty under the Sex Discrimination Act 1984. The guidelines are centred around seven standards - leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency. Examples of practical actions that organisations or businesses can take to meet each of the standards are set out in the guidelines. Ms Lloyd said, as each business is different, it depended on how big a team was, what was going to be practical and cost-effective in the workplace. She said the commission would look at the different standards if there was an investigation or inquiry. How often do employers need to talk to their team about this? Ms Lloyd said it should be looked at similarly to safety or work related issues, whether that be a toolbox or regular meeting once a week or every couple of days. She said if a contractor was starting a new job or visiting a place they hadn't been to before, it was about having that conversation upon arrival. "When everyone's preparing for their first break, sit down and have a chat about general safety as well, " Ms Lloyd said. "That's the first step, and then follow it up a month later when you start a new shed. "It is about consistently and actively taking measures to create a safe space. "It seems obvious that once you've gone through your checklist you then talk to the people coming into that environment, who are your workers, and alert them to what you have found. "Similarly, with positive duty, a checklist is proof that you are doing the right thing if you are audited." Does insurance cover sexual discrimination cases? Having insurance does not diminish positive duty, it just safeguards employers against potential damage and loss against their business if they are sued. Ms Lloyd said sexual discrimination cases, which travelled through the Federal Court, were not cheap and often have adverse outcomes from an award of damages perspective. "If we talk about Work Health and Safety, as you know, that is a serious issue you have to take onboard and consider, " she said, "And that's the way I think employers need to frame their conduct when talking about and implementing measures to prevent sexual harassment, discrimination and victimisation." Is an employer covered if they have put everything in place, but those rules are still broken? Ms Lloyd said an employer would be protected if they have been able to eliminate as much as they can with the resources available to them. She said it was important to remember sexual harassment and discrimination is unlawful conduct. "In terms of positive duty, by taking all reasonable steps and measures given the resources available to you, you will be able to mount a solid defence against any claim. "If you've done your duty positively and it can be demonstrated that you've exercised your role in appropriate fashion, then that will be solid defence." For more information on the positive duty reform and seven standards, go to humanrights.gov.au
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