Transparency or tyranny?

Have your say on surveillance laws in NSW

The NSW Government is currently reviewing the Surveillance Devices Act 2007. This review presents a critical opportunity to strengthen animal welfare and uphold democratic principles in NSW. 

The public consultation period for this opportunity has now closed. Thank you for having your say.

Currently, there is no provision for a public interest exemption regarding the gathering or publication of evidence of alleged animal cruelty obtained through unlawful means. This silences advocates and media who courageously risk their safety and freedom to expose the horrific realities animals and employees often face behind closed doors.

Without this exemption, whistleblowers and activists who shine a light on the appalling conditions in factory farms, slaughterhouses, puppy factories, thoroughbred and greyhound racing, and other animal exploitation industries face severe penalties, including hefty fines and imprisonment. This not only suppresses crucial information, it undermines our democracy's fundamental values of transparency and accountability.

Now is the time to demand that our laws prioritise compassion and justice over corporate interests. Will you join us in urging the NSW Government to incorporate a robust public interest exemption into the Surveillance Devices Act, ensuring that those who expose animal cruelty are protected, not punished?

How to have your say

You can have your say in two easy ways: either by using our template to send an individual submission or by drafting a unique submission incorporating personal opinions. Additionally, supporters can provide responses to a series of questions provided by the Government. We have prepared suggested responses to these questions below. 

We strongly recommend that you personalise these responses to ensure that your voice is authentically represented and that your unique perspective adds weight and depth to our collective call for transparency and justice. The Department may publish comments they receive. If you do not wish your comments to be made public, say so in your submission.

Image source: WeAnimals

Suggested responses to questions provided

Animal Liberation has carefully crafted a series of detailed responses to the eight consultation questions asked by the NSW Government. We encourage you to review these suggested responses and use them as a template to have your say on this critical issue. By providing these ready-to-use responses, we aim to empower you to effectively advocate for the reforms needed to protect whistleblowers, activists, and the media who expose animal cruelty. Your voice can make a real difference in shaping the future of surveillance laws in NSW.

Submissions to this critical public consultation period were open until 11.59pm on 22 May 2024. The public consultation period for this opportunity has now closed. Thank you for having your say.

  • Should exceptions be added to sections 11, 12 and 14 of the Surveillance Devices Act 2007 (‘SD Act’) to allow information, records and reports obtained from using a surveillance device in breach of the SD Act to be communicated, published or possessed if it is in the public interest?

    I fully support the addition of public interest exceptions to the Surveillance Devices Act 2007. Existing provisions currently hinder efforts to expose serious wrongdoing by criminalising the communication, publication, or possession of information obtained through unlawful surveillance. Documenting and sharing evidence of alleged misconduct is crucial for driving meaningful reforms for the greater good. A clear public interest exception would ensure that important evidence can be brought to light without fear of sanction, thus preventing chilling effects on legitimate investigative and whistleblowing activities. Without such exemptions, transparency and accountability across various sectors are compromised. As such, I strongly urge the NSW Government to amend the Act to include robust public interest exceptions, enabling the communication and publication of evidence related to animal abuse, corruption, or other serious issues where public interest outweighs privacy concerns. Such a balanced approach is vital for maintaining the principles of a free and open society.

  • Should the exceptions include a requirement that the possession, communication or publication be reasonably necessary in the public interest?

    While I acknowledge the importance of balancing individual privacy with the broader public interest in transparency and accountability, current legislation discourages legitimate investigative activities that are crucial for the common good. Therefore, I strongly support the inclusion of public interest exceptions to sections 11, 12, and 14 of the SD Act, requiring that possession, communication, or publication of information or recordings be ‘reasonably necessary’ in the public interest. Courts have narrowly interpreted existing exceptions, emphasising the need for clear criteria for legitimate public interest justifications. Requiring 'reasonable necessity' would prevent abuse and ensure the exception serves a genuine public purpose. This criterion would limit exceptions to cases where there is a clear and compelling public interest that cannot be met otherwise. For instance, in cases of animal cruelty, it should apply when materials provide evidence that is unobtainable through lawful means and is vital for consumer awareness and reform. Without such exceptions, the law risks discouraging vital investigative and whistleblowing activities, thereby perpetuating unethical practices.

  • Should the exceptions include a requirement that the person believes on reasonable grounds that possessing, communicating or publishing the information, record or report is in the public interest?

    I believe the public interest exceptions added to sections 11, 12, and 14 of the SD Act should include a requirement that the person possessing, communicating, or publishing the information, record, or report believes on ‘reasonable’ grounds that it is in the public interest to do so. This ensures the exceptions aren't abused, demanding a genuine assessment of the public interest. Such a requirement limits exceptions to cases where there is a clear public purpose unattainable through lawful means, striking a balance between privacy and exposing serious wrongdoing.

    However, I strongly believe that there should be a transparent process by which the ‘reasonable grounds’ determination can be reviewed and challenged, if necessary. This could involve the ability to appeal to an independent oversight body or the courts, where the person or organisation's rationale and supporting evidence would be carefully and transparently examined. For instance, as an independent oversight body that has jurisdiction over matters related to privacy, freedom of information, and the use of surveillance, the NSW Ombudsman could potentially be tasked with determining the ‘reasonable grounds’ determination under amendments to the SD Act. As such, the State Ombudsman or an Independent Office of Animal Welfare Commissioner could potentially provide a transparent process for reviewing and challenging the ‘reasonable grounds’ determination made by individuals or organisations seeking to rely on the public interest exemption. Alternatively, a new independent body could be created to handle the ‘reasonable grounds’ determinations and provide the necessary transparency and accountability around the public interest exceptions.

  • Should the exceptions require an order from a judge to permit the information, report or record to be communicated or published in the public interest?

    I oppose the requirement for a court order to permit communication or publication under public interest exceptions in sections 11, 12, and 14 of the SD Act. Such a process would be burdensome and impractical, potentially deterring individuals and others from using these exceptions even when there is a clear public interest. Courts have interpreted existing exceptions narrowly, suggesting a court order may not ensure objective decision-making. Instead, we should focus on clear, flexible criteria for assessing public interest, empowering individuals to make reasoned judgments. Democracy thrives when citizens can expose wrongdoing. A streamlined, self-assessment approach to public interest exceptions is preferable to maintain accountability and transparency.

  • Should the exceptions allow possession, communication and publication by and to any person if it is in the public interest?

    I believe that the primary consideration for exceptions to the SD Act should be the public interest, particularly concerning animal welfare and preventing animal cruelty. Allowing possession, communication, and publication of surveillance records when in the public interest would empower citizens to expose abuse or neglect. Transparency and accountability about the treatment of animals holds significant public interest. Access to information, even from surveillance, can protect animals and hold responsible parties accountable. Therefore, I advocate for a broad application of the public interest test, permitting disclosure of surveillance records if limited to necessary information. Prioritising animal welfare over strict privacy interpretations is paramount. Incorporating a robust public interest exemption into the SD Act is essential for safeguarding animal wellbeing in New South Wales.

  • Should the exceptions only allow communication and publication about unlawful or corrupt activity in the public interest? If so, should communication and publication be permitted only to police, or also to other law enforcement, regulatory enforcement, anti-corruption and integrity bodies?

    The public interest should be the primary consideration when determining exceptions to the SD Act. Allowing communication and publication about unlawful or corrupt activity would serve an important public interest by promoting transparency and accountability. However, the exceptions should not be limited only to unlawful or corrupt activity. There is also a strong public interest in allowing communication and publication about animal cruelty, abuse, or other unethical practices that may not necessarily be illegal, but are still of significant public concern.

    The exceptions should permit communication and publication not only to police and law enforcement, but also to regulatory bodies, anti-corruption agencies, and other relevant oversight and integrity authorities. This would ensure that information about wrongdoing can be effectively reported and addressed.

    Ultimately, the public interest test should be applied broadly to allow the disclosure of information that serves the greater good, even if it does not strictly relate to unlawful activity. Transparency and accountability are essential for a healthy democracy, and the public has a right to know about issues that impact animal welfare and the environment.

  • Should the exceptions allow communication and publication to and by media organisations in the public interest?

    The exceptions to the SD Act should allow communication and publication to and by media organisations in the public interest. There are several key reasons why this is important:

    1. Freedom of expression and the public's right to information are fundamental democratic principles that should be protected. Media organisations play a crucial role in upholding these rights by investigating and reporting on matters of public concern;

    2. Allowing media access to information obtained through surveillance devices can expose wrongdoing, corruption, or unethical practices that may not otherwise come to light. This serves an important public interest in transparency and accountability;

    3. The public interest should be the primary consideration, not only the legality of the activity. There may be cases where unethical, but not necessarily illegal, conduct is revealed, of which the public still has a right to know;

    4. Reputable media organisations can be trusted to exercise responsible judgement in determining what information is truly in the public interest, based on established ethical codes and practices. They should not be unduly restricted from fulfilling this role;

    5. Limiting exceptions only to law enforcement and regulatory bodies could inhibit the media's ability to independently investigate and report on issues of public concern. As such, a broader public interest exemption is warranted.

    In summary, the exceptions should be crafted to protect the vital role of a free press in a democratic society, while still maintaining appropriate safeguards. Allowing media access to information in the public interest is essential for promoting transparency, accountability, and the free flow of information.

  • Are there any other requirements or limits that the exceptions should include?

    In considering the review of the SD Act, I believe it is crucial that any public interest exceptions include additional requirements and limits to ensure they are effective and not undermined by other legislation, such as the Biosecurity Act 2015 (NSW) and the Surveillance Devices Act 2004 (Cth). I recommend that the following factors be taken into consideration during the current review process:

    1. The definition of ‘public interest’ should be interpreted broadly to encompass a range of important societal issues, including documenting and reporting on human rights abuses, shedding light on government corruption or misconduct, drawing attention to environmental degradation, pollution, or the impacts of climate change, and the prevention of animal cruelty. These are matters of significant public concern that must be given due consideration;

    2. Both the Biosecurity Act 2015 (NSW) and the Surveillance Devices Act 2004 (Cth) contain broad definitions and powers that could potentially allow authorities to seize material used to expose alleged animal cruelty. I believe that it is crucial that the review of the SD Act carefully considers the potential interactions with these Acts, and ensures that the incorporation of any public interest exceptions are designed to override the broad definitions and seizure powers contained in them. If and where there is a conflict between the SD Act and these Acts, the public interest exceptions should be designed to prioritise the exposure of animal cruelty and neglect. The protection of vulnerable animals should take precedence over broad biosecurity powers or surveillance device regulations;

    3. The public interest exceptions should explicitly limit the ability of authorities to seize or destroy evidence of alleged animal cruelty, even if it is obtained through the use of surveillance devices. Robust safeguards must be in place to prevent the misuse of biosecurity powers to suppress such information;

    4. The proposed Bill that will replace the existing Prevention of Cruelty to Animals Act 1979 (‘POCTAA’) must be underpinned by a robust Crimes Act that empowers the exposure of animal cruelty, protects whistleblowers, and enables meaningful accountability - even when information is obtained through unlawful means. Without this alignment, the ongoing animal welfare reforms that the NSW Government has engaged in risk being undermined by outdated or contradictory provisions in the Crimes Act;

    5. Individuals who come forward with evidence of alleged wrongdoing or matters of significant public interest, obtained through the use of surveillance devices, should be afforded comprehensive whistleblower protections. This would shield them from prosecution or retaliation, including under the Biosecurity Act 2015, for acting in the public interest. By taking this holistic approach, the law can empower a wider range of advocates and concerned citizens to expose wrongdoing without fear of facing harsh penalties or retribution, aligning with the fundamental democratic principles of transparency, accountability, and the public's right to know.

    By incorporating these additional requirements and limits, the NSW Government can ensure that the proposed public interest exceptions to the SD Act are not undermined by the broad powers granted under other legislation as well as the interactions between the Crimes Act 1900 and ongoing reforms to the state’s principal animal protection legislation.

The deafening silence around animal cruelty in NSW is a direct result of the Surveillance Devices Act's failure to enshrine robust public interest exceptions.

Whistleblowers and advocates who courageously risk everything to shed light on the horrific realities animals face are ruthlessly punished, with harsh penalties that curtail transparency and accountability.

Implementing strong public interest protections is an urgent moral imperative - to empower the voices of compassion, and ensure that the truth about systemic animal abuse can no longer be suppressed by those with a vested interest in secrecy.

Background history

The evolution of surveillance laws in New South Wales has been shaped by a complex interplay of technological advancements, public concerns over privacy, and the need for law enforcement to effectively investigate serious crimes.

This section explores some of the pivotal moments and legislative changes that have defined the surveillance landscape in NSW over the past few decades, with a focus on their interaction with animal protection and advocacy. Simply click a year to learn more.

  • The Inclosed Lands Protection Act 1901 (NSW) is introduced, which prohibits unlawful entry on agricultural land and imposes higher criminal penalties in aggravated circumstances, such as interfering with a business, damaging property, and releasing farmed animals.

  • The Surveillance Devices Act 2007 (NSW) replaces the Listening Devices Act 1984 (NSW) and regulates the use of surveillance devices. It includes provisions limiting the publication or communication of footage or photographs of ‘private activities’, such as those in intensive farming and slaughtering operations. Sections 11 and 12 prohibit the communication, publication, or possession of records or reports obtained through unlawful surveillance devices. This significantly hampers animal advocates' ability to share evidence of alleged animal cruelty publicly.

  • The ABC airs A Bloody Business, exposing the mistreatment of animals in Indonesian abattoirs, sparking widespread public outrage. The documentary, featuring undercover footage, prompted calls for greater transparency and accountability in the agricultural sector. Viewers demanded reforms to ensure humane treatment of animals and stricter regulations to prevent similar instances of abuse. The exposé played a pivotal role in raising awareness about animal welfare issues and catalysed national discussions on the ethics of food production and treatment of animals, leading to subsequent advocacy efforts and calls for industry reform.

  • In 2015, the NSW Government introduced the Biosecurity Act 2015. The Act imposed harsh penalties, including fines of up to $220,000 for individuals and $440,000 for corporations, for trespassing on properties with biosecurity management plans in place. This effectively criminalised undercover investigations and whistleblowing activities aimed at exposing the alleged mistreatment of animals, as such actions could be construed as creating biosecurity risks. As such, the introduction of the Biosecurity Act 2015 raised concerns among animal welfare advocates, who argued that it could shield unethical practices from public scrutiny and hinder efforts to ensure transparency and accountability within the animal agriculture industry.

    The Biosecurity Act 2015 constitutes 'ag-gag' legislation by imposing severe penalties on animal rights activists. The broad definitions of terms like ‘biosecurity matter’ and ‘biosecurity risk’ can encompass activists, their equipment, and even the footage they obtain, allowing the government to prosecute them for failing to prevent perceived biosecurity threats. This has raised concerns that the Act is being used to silence whistleblowers and shield unethical practices within the animal agriculture industry from public scrutiny.

  • Farm Transparency Project's director, Chris Delforce, is raided by police and charged with publishing footage and photos depicting lawful cruelty at numerous farms and slaughterhouses under the Surveillance Devices Act. These charges were later dismissed.

  • The Right to Farm Bill 2019 (NSW) is introduced to amend the existing Inclosed Lands Protection Act 1901. The main purpose of the bill was to provide additional legal protections and ‘nuisance shields’ for agricultural enterprises against trespass and disruption. Specifically, the bill:

    1. Increased criminal penalties for trespassing on agricultural land, with fines up to $22,000 for individuals and $440,000 for corporations;

    2. Introduced the threat of up to 5 years imprisonment for those who encourage others to trespass on farms;

    3. Aimed to shield farmers from legal action over “normal farm activities” that may be considered a nuisance to neighbouring properties.

    Though this legislation was viewed as a major win for the farming lobby in NSW, with the government framing it as protecting the "right to farm" against activist interference, it was criticised by animal welfare advocates as an attempt to further entrench secrecy around animal agriculture and shield abusive practices from public scrutiny. Overall, the Right to Farm Bill represented an expansion of ‘ag-gag’ style laws in NSW, increasing the legal risks and penalties for those seeking to expose alleged animal cruelty on farms through the use of surveillance or trespass.

  • The Criminal Code Amendment (Agricultural Protection) Act 2019 (Cth) is enacted at the Federal level. The main purpose of this Act is to create new criminal offences related to the use of the internet or other electronic communications to incite trespass on agricultural land. Specifically, the Act:

    1. Made it a criminal offence to use a ‘carriage service’ (e.g. internet, phone) to incite others to trespass on agricultural land;

    2. Imposed penalties of up to 5 years imprisonment for individuals found guilty of this offence;

    3. Aimed to deter and punish activists and whistleblowers from encouraging others to engage in trespass or other disruptive activities on farms and other agricultural facilities.

    This legislation was part of a broader trend of ‘ag-gag’ style laws being introduced across various states and territories in Australia. These laws seek to restrict the ability of animal rights advocates to access and document conditions on farms and in other agricultural operations. The introduction of the Criminal Code Amendment (Agricultural Protection) Act 2019 was viewed by critics as an attempt to shield the agricultural industry from public scrutiny and the exposure of potential animal welfare abuses. It was seen as further entrenching the secrecy around industrial animal agriculture. Overall, this Act represented a significant expansion of legal tools available to authorities to target and punish those engaged in whistleblowing, undercover investigations, and other efforts to shed light on practices within the Australian agricultural sector.

  • The High Court case of Kadir v The Queen addressed the admissibility of evidence obtained through secret surveillance in a prosecution for alleged animal cruelty offences. The High Court unanimously ruled that the surveillance footage, which was obtained in contravention of the Surveillance Devices Act 2007, was inadmissible under section 138 of the Evidence Act 1995 (NSW). However, the Court determined that other evidence obtained through the execution of a search warrant, as well as certain admissions made by the accused, were admissible despite the initial unlawful surveillance. The High Court found that while the surveillance footage was obtained improperly, the causal link between the unlawful conduct and the other evidence was more tenuous, and the public interest in admitting that evidence outweighed the undesirability of giving judicial approval to the unlawful conduct. This decision highlights the complexities involved when dealing with evidence obtained through improper or unlawful means.

  • Farm Transparency Project mounts a High Court challenge against the constitutional validity of the Surveillance Devices Act 2007, arguing it restricts the implied freedom of political communication by hindering animal advocates from exposing animal cruelty. The High Court ultimately dismissed the challenge in a 4-3 decision.

  • The NSW Government announces the public consultation period for proposed reforms to the Surveillance Devices Act 2007. Now is the time to demand that our laws prioritise compassion and justice over corporate interests.

    Will you join us in this fight for accountability and transparency?

This timeline demonstrates how both the NSW and Commonwealth governments have progressively introduced and expanded 'ag-gag' legislation over the past two decades, using a combination of existing laws, like the Surveillance Devices Act 2007, as well as new targeted laws to restrict the ability of animal advocates and whistleblowers to expose alleged animal cruelty and neglect.