Trespass, Recordings, and Freedom of Speech in Australia: Balancing Private Law, Criminal Law, and Constitutional Freedoms

The Surveillance Devices Act 2007 (NSW) criminalises trespass to land (especially by installing surveillance devices) but significantly, it also criminalises the communication or possession of records of activities or private conversations (or reports thereof) if those records were obtained by entry onto premises or interference with goods without the owners' consent. In Farm Transparency International Ltd v New South Wales (Farm Transparency), the High Court was asked to consider the constitutional validity of those provisions. The majority of the High Court found that the provisions in question did not infringe the implied constitutional freedom of communication on governmental and political matters. This article concludes that the majority failed to adequately balance the constitutional implied freedom of political communication against the rights sought to be protected by the Act. In reaching that conclusion, this article explores the complex interaction of private law, criminal statute, and constitutional freedoms.