High Court dismisses NSW animal welfare case

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Animal rights campaigners say a High Court dismissal of their challenge to surveillance laws in NSW prevents necessary exposure of industry animal cruelty.

A majority of four to three justices ruled that the surveillance devices law did not unfairly encumber freedom of political communication in a judgment handed down on Wednesday.

“The provisions served a legitimate privacy purpose,” they wrote in a summary of the decision.

Judge James Edelman found that evidence submitted of secretly recorded farming practices revealed “shocking cruelty” to animals.

But the case “was presented on the basis that the activities, while undeniably cruel, were not established to be unlawful.”

The Farm Transparency Project sued the state government in June 2021, saying police had increasingly used the law to limit public awareness of large-scale harm and cruelty to livestock.

Non-profit group director Chris Delforce said ‘ag-gag’ laws prevent consumers from seeing the everyday, legal and industry-standard cruelty they were complicit in funding, he said. he told the AAP.

“A lot of people wouldn’t support it if they found out,” he said.

He said the disappointing decision had wider implications preventing NSW media from publishing any material of public interest collected by intrusion.

Mr Delforce said he faced prosecution after posting video footage of “legal cruelty at many pig barns and the largest pig slaughterhouse in the country”.

His lawsuit was dropped in 2017 over a technicality, but Mr Delforce said he was already preparing to take the case to the High Court.

He had obtained the recordings by unlawful intrusion and argued that sections of the law impermissibly interfered with the ability to release the information.

The High Court found that the law does not unfairly restrict a person’s freedom of communication or publication in recording or reporting lawful activity where they are “complicit in obtaining the information exclusively in violation of the law”.

Similar surveillance laws exist in most other Australian states which achieve the same level of privacy but provide clear exemptions for material in the public interest.

However, the High Court found that the statutory schemes of other Australian jurisdictions were not obvious and compelling alternatives.

“They did not pursue the same objective and had a broader application.”

Justice Stephen Gageler agreed that the law prevented the publication of disturbing activity and breached the constitutional guarantee of freedom of political communication.

“Respecting the constitutional guarantee means that privacy cannot always trump political communication,” he wrote in his dissenting judgment.

In contrast, Judge Edelman concluded that the best protection of animals from cruelty in a democracy was not the implied freedom of political communication.

“The best protection for non-human animals must come from parliament,” he wrote, adding that the laws included the power for inspectors to enter land without consent if they were reasonably suspected of cruelty.

The maximum penalty for breaking the law is five years in prison.

Mr Delforce’s charity campaigns for policy and legal changes to farming practices and animal welfare standards in an effort to end modern farming and slaughtering practices.

And the High Court ruling was not going to change that, he said.

“The industry has no right to keep its horrendous practices secret and we will continue to publish material.

“We accept that this may open us up to criminal prosecution.”

He believed that if a major media organization took on the case, he would have a better chance of winning.

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