What do farm animals have to do with the Australian Constitution?
Does the public need to know what is happening in slaughterhouses and farms? Do we have the right to publish images of what happens to animals in slaughterhouses? Should governments be able to make laws that criminalize it? How do we best protect farmers’ privacy and prevent violations?
The Supreme Court addressed these issues in Farm Transparency v New South Wales and ruled this month. This case concerned Sections 11 and 12 of the Surveillance Devices Act 2007 (NSW): Section 11 prohibits the publication or communication of any footage or photographs of “private activities”, including intensive farming and slaughtering activities, with penalties of up to five years in prison. Article 12 criminalises the possession of such recordings.
In 2015, Farm Transparency Project director Chris Delforce was charged with publishing images and photos of legal practices in pig houses. The footage related to the use of carbon dioxide gas as a means of slaughtering animals.
Although the charges were ultimately dismissed, animal welfare groups fear the legislation will hinder legitimate whistleblowing (and public access to information) about the agricultural sector. There are also concerns that the legislation could dampen the media’s willingness to address these issues. This, in turn, could limit Australian consumers’ ability to make informed choices about what they eat and hamper public discussions about animal welfare due to a lack of information.
In that context, Farm Transparency took legal action arguing that the Surveillance Devices Act violated the “freedom of political communication” implicitly protected by the Australian Constitution. In doing so, they turned an issue of animal welfare and consumer rights into a constitutional issue.
Read more: Not just activists, 9 out of 10 people are concerned about animal welfare in Australian agriculture
What is the implied freedom of political communication?
Australia, unlike all other western democracies, has no federal law. This means that there is no isolated right to free speech or expression.
However, freedom of political communication is implied by Sections 7 and 24 of the Australian Constitution, which require elected representatives to be “elected by the people”.
The courts have previously held that this implies that laws should not restrict our communication about political matters because that affects our choice of representative. This means that state or federal laws that disproportionately “tax” communication about political affairs may be labeled unconstitutional.
The Supreme Court has repeatedly emphasized that freedom of political communication is not absolute, nor is it a personal right. On the contrary, laws that are aimed at a legitimate purpose and that are reasonable and adapted to that purpose will still be valid.
In this case, the question before the court was whether the Surveillance Devices Act 2007 is “appropriate”, “necessary” and “balanced” in pursuing a legitimate aim. These questions have also been dealt with by the court before in connection with things such as protesting, tweeting, political donations, bail conditions and media coverage.
What has the Supreme Court decided?
Four members of the court (Kiefel CJ, and Keane, Edelman, and Steward JJ) argued that while the legislation taxed political communication, it also served a legitimate purpose of privacy. They also considered that the penal provisions were proportionate to that aim. Another judge (Gordon J) “read” the scope of the provisions, meaning she believed they were limited in scope and could not be enforced to restrict the publication of political communications.
In particular, two judges disagreed with the majority (Gageler and Gleeson JJ), finding the legislation invalid. According to them, Articles 11 and 12 impose general prohibitions and do so without distinction. In particular, Gageler J thought: “The prohibitions are too blunt; their price is too high”.
But in the end, the majority was of the opinion that Articles 11 and 12 are constitutionally valid.
Of interest to those interested in animal welfare is that Kiefel CJ and Keane J accepted that it was “a legitimate matter of governmental and political interest”. However, according to them, the relevant provisions in this case were not aimed at limiting the content of the communications, but the manner (such as violation) in which they were obtained.
Read more: Can Labor’s animal welfare plan improve Australia’s lackluster record?
Why does this matter?
This decision means that better conditions for farm animals must be achieved through legislative and policy reform. Concerned consumers need to convince parliaments to improve the legal protection of non-human animals.
The problem probably won’t go away. Animal welfare organizations are increasingly concerned about standards of care and the way animals are raised and slaughtered. Consumers are smarter in the information age and prefer choice.
Recognition of animal awareness and animal rights may ultimately limit the possibility of large-scale factory farming. This, in turn, will contribute to overall efforts to mitigate climate change and other environmental impacts.
There is also the overarching issue of the legal protections afforded to whistleblowers in general and the inherent problem of restricting information necessary for meaningful public debate.
Individuals and organizations have legitimate expectations of privacy. However, raising reasonable concerns about behavior is an important tool for maintaining good governance and promoting accountability. Whistleblower protection is limited in Australia and there is scope for legislative reform in this area.